New South Wales Nurses and Midwives' Association v Mid North Coast Local Health District - [2023] NSWIRComm 1099 - NSWIRComm 2023 case summary — Zoe

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New South Wales Nurses and Midwives' Association v Mid North Coast Local Health District

[2023] NSWIRComm 1099

Industrial Relations Commission (NSW)|2023-08-31

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2023-08-31

Catchwords

238 CLR 570 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89
251 FCR 470 Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065
280 IR 47 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd
126 A Crim R 562 Ramsay v Menso [2018] FCAFC 55

Source

Original judgment source is linked above.

Catchwords

238 CLR 570 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89251 FCR 470 Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065280 IR 47 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd126 A Crim R 562 Ramsay v Menso [2018] FCAFC 55

Judgment (23 paragraphs)

[1]

Background

The CHAMHU and the CHCMH are part of the Integrated Mental Health and Alcohol and Other Drug Services run by MNCLHD. The CHAMHU is an in-patient facility, while CHCMH delivers services to patients in the community. CHCMH has two teams: an extended hours community mental health team and a case management team. The teams are co-located in the eastern most end of the Coffs Harbour Base Hospital and are adjacent to the CHAMHU.
On 23 December 2021 Brett Holmes, the General Secretary of the Association, wrote to Ms Penny Jones, Director Integrated Mental Health and Alcohol and Other Drugs Services, requesting that an urgent 'Reasonable Workload Committee' be convened in January 2022 to address work, health and safety issues that had been raised by members. In summary, Mr Holmes asserted that members had reported:

chronic workload issues, including excessive overtime, high nursing vacancies and rostering gaps, correlating with direct violence against staff;

How these concerns of members had been conveyed to Mr Holmes was not explained in the evidence.
Mr Holmes also requested the provision of data in respect of numerous matters, ahead of the proposed meeting. A meeting was duly held, and it seems some data was provided to the Association ahead of the meeting.
Despite the meeting, the Association's safety and staffing concerns continued. On 8 April 2022, Megan May, a WHS Professional Officer employed by the Association, was approached by an Association organiser, Emma Malone, who explained that members had work, health and safety concerns in respect of operations at the CHAMHU and the CHCMH. The nature of the concerns was said to be ongoing exposure to patient violence and aggression due to patients being inappropriately admitted to the mental unit, inadequate staffing and inappropriate skills mix of staff, and psychosocial risks.
Ms May gave evidence in the proceeding on behalf of the Association and was cross examined. Ms Malone and Mr Holmes were not called as witnesses.
On 2 May 2022 Mr Holmes send another letter to Ms Jones, raising three categories of concerns: staffing levels and compliance with cl 53 of the Public Health System Nurses' and Midwives' (State) Award 2021 (Award); professional concerns surrounding the use of non-nursing staff to care for patients; and work, health and safety concerns arising from the first two concerns. In relation to the latter concern, Mr Homes' stated: "Nursing staff within the Unit also hold significant concerns about potential risks to their own health and safety (including psychological health) arising from recent staff shortages, the responsibility for care provided by non- nursing staff, and incidents of violence they are repeatedly exposed to within the unit. This exposure to violence includes assaults on themselves and witnessing assaults of their colleagues. In the absence of an admission and exclusion criteria for the inpatient unit, members report this a (sic) compounding variable contributing to the detrimental outcomes for their physical and psychosocial well-being. The Association recognises that these (sic) issues identified are interrelated and pose a serious risk to the health and safety of nursing staff on the unit."
The Association again requested staffing data and that an appropriate representative of the MNCLHD contact Ms Malone to provide the requested data and to set a time and date to hold a 'Union Specific Consultative Committee' (USCC) meeting to discuss resolution of the identified issues.
Again, how the members' concerns had been communicated to Mr Holmes, or indeed to Ms Malone, was not explained in the evidence.
The evidence did not establish whether a USCC meeting was held at any time after January 2022 and prior to August 2022.
On 15 July 2022 Ms May met with Ms Malone to discuss the Association's ongoing concerns and to make arrangements for an internal Association meeting to discuss the issues fully. During this meeting Ms Malone apparently told Ms May "about the poor workplace culture that existed at the site as she had heard from members."
On 18 July 2022 Ms May met with Ms Malone, Nicole Mason, Lead Organiser with the Association, Sarah Davis, Industrial Officer with the Association and Ms Zoe-Anne Guinea, an Organiser with the Association. Ms Guinea gave evidence in the proceeding and was cross examined.
During the meeting Ms Malone apparently said that members had told her that their professional and work health and safety obligations were being put at risk due to inadequate staffing and resources to manage the risks arising from their work. According to Ms May it was around this time that she: "… formed a suspicion that it appeared there were potential breaches of section 19 of the WHS Act by the MNCLHD of their obligation to ensure the health and safety of nurses employed in the CHAMHU and the CHCMH. The breaches arose from nurses' exposure to occupational violence and the MNCLHD's failure to maintain psychosocial hazards including work overload, poor support and remote and isolated work."
On 28 July 2022 Ms Malone handed over responsibility for working with members and branches of the Association in the MNCLHD to Ms Guinea. According to Ms Guinea, during the handover Ms Malone informed Ms Guinea that issues at the CHAMHU and the CHCMH included that: 1. the Nursing Hours Per Patient Day (NHPPD) required by cl 53 of the Award were not being met; 2. staff reported the general staffing profile was: 1. one nurse to four patients in the morning shift; 2. one nurse to five patients in the afternoon shift; 3. four nurses on night duty regardless of patient numbers; and 4. Nurse Unit Managers (NUMs) were working on the floor often; 1. there was a very junior cohort of staff and high level of psychosocial distress; 2. there were no admission and exclusion criteria for the CHAMHU; 3. there were inappropriate admissions to the CHAMHU and there was a high level of pressure to admit inappropriate patients from the Emergency Department, that is, patients experiencing situation crises and intoxicated patients.
On 12 August 2022 Ms Malone emailed a document to Ms Guinea containing a table with information relevant to the role of organiser for the Association in the MNCLHD, which included, in shorthand form, reference to the above issues.
Ms Malone also provided Ms Guinea with copies of the two letters Mr Holmes had sent to Ms Jones, dated 23 December 2021 and 2 May 2022 respectively.
On 10 August 2022 Ms May attended a USCC to discuss the asserted work, health and safety issues impacting staff. No other evidence was led regarding who attended this meeting, or what precisely was discussed.
On 15 August 2022 Ms Guinea attended a meeting with Association members who worked in the CHAMHU and for CHCMH. According to Ms Guinea: "9. … It was quite a well-attended meeting, and members were very unhappy. They talked about issues including how patients who were still intoxicated on drugs and/or alcohol are admitted to the CHAMHU and are violent and aggressive. Members said it is against the Mental Health Act 2007 (NSW) to have these patients in the unit until they are no longer intoxicated. 10. Around this time, I suspected that CHAMHU and CHCMH had very serious WHS issues and that the MNCLHD was breaching the Work Health and Safety Act 2011 (WHS Act) due to factors such as the admission criteria, particularly for those patients who were affected by drugs and alcohol. Drug and alcohol-affected patients are meant to stay in the Emergency Department until they are no longer drug and alcohol affected. Additionally, the CHAMHU and CHCMH nurses were not trained in Violence Prevention Management, which meant that the nurses were not adequately trained to deal with the situations of violence and aggression occurring on the ward. 11. MNCLHD was also failing to manage psychosocial hazards including: a. Work overload: the ward was at capacity with a poor skill mix. b. Poor support: staff lacked essential training such as Violence Prevention and Management training. c. Remote and isolated work - failure to meet NHPPD left staff to care for too many patients."
On 29 September 2022, Ms May and Ms Guinea attended an online meeting with Association members from the CHAMHU and CHCMH to discuss the work health and safety issues impacting them at their workplace. According to Ms May, members raised their concerns with respect to: 1. inappropriate patient admissions to the mental health unit; 2. role overload issues with nurses often required to work short with up to 36 beds open; 3. inadequate skills mix on shifts; 4. concerns regarding staff's status of up-to-date Violence Prevention and Management training and other mandatory education that is required to work on an acute mental health ward; and 5. no consultation on the Emergency Mental Health Acute Addiction Response Team (EMHAART) impacting community mental health members.
According to Ms May, after this meeting she also had a number of telephone discussions with individual members from CHAMHU and CHCMH who rang her to discuss their individual experiences and concerns about the work health and safety risks and how this was adversely impacting on their physical and psychosocial well-being. No specific details of what was said during these discussions was given in evidence.
Ms May stated that during the online forums and telephone discussions with members, she came to suspect a contravention of s 19 of the WHS Act, specifically their exposure to occupational violence; failure to manage psychosocial hazards including workload; failure to manage psychosocial hazards including poor support; and remote and isolated work. Ms May's evidence of the information she was provided during her discussions with members was set out in paragraph 17 of her statement as follows: "a Exposure to occupational violence i. Members recounted to me exposure to incidents of patient violence on staff, fatigue, role overload and poor support. The members detailed concerns that the patient violence arose from inappropriate admission to the CHAMHU, poor assessment of the risks arising from the patients' behaviours, inadequate staffing with poor skills mix and experience of staff on the CHAMHU. Some of the members I spoke to became distressed and were crying when they recounted WHS issues they had experienced at work. ii. In discussions with the members, they detailed concerns about poor safety systems of work for CHCMH staff. These concerns in CHCMH arose from inadequate risk assessment and duress response systems when undertaking field visits, constant staff movement, ongoing vacancies not being filled and increasingly complex needs of consumers. Members noted that workloads meant that often ims+ reports of incidents and/or near misses were not completed. Several members noted movement of colleagues from CHCMH to inpatient CHAMHU where they felt they were safe from unforeseen harm that could potentially be faced in consumer home visits. b. Failure to manage psychosocial hazards including work overload i. Members reported often being required to do overtime and that they did not have enough time to complete all the required actions of patient care within their rostered hours. Members said that they considered moving to casual status so they could refuse overtime. Members said they often went home feeling stressed and anxious. Members spoke about being required to work regular overtime due to staff shortages and often feeling like they suffered from work overload due to shifts regularly not being fully or adequately staffed. c. Failure to manage psychosocial hazards including poor support i. Members reported that they felt unsupported at work and feared speaking up due to potential repercussions for those who spoke out about WHS concerns. Members stated that incidents of patient violence and aggression were minimised by the MNCLHD and they felt unsupported following incidents where they were assaulted or observed violence and aggression. d. Remote and isolated work i. Members reported their concerns regarding inadequate safe systems of work for community mental health consumer home visits due to inadequate risk assessment and duress response systems when undertaking consumer home visits and growing complexity of consumer mental health needs. ii. Members also noted that in the inpatient CHAMHU staff also felt isolated in the High Observation Area (HOA) with several CCTV cameras non-operational, or lines of sight into the HOA from the nurses station, inadequate staffing and skills mix and many faults being experienced with the duress alarm system."
The day after the online meeting, on 30 September 2022, Shanna Whybro, the Association's Branch Secretary and Tuulenana Tu Luli, the Association's Branch Vice President, wrote to Lynne Halliday, a MNCLHD manager, informing her of the meeting of members held on 29 September 2022 and making various requests as follows: "● the branch requests a copy of the services (sic) Admission and Exclusion Criteria for the Acute Ward. It appears that the unit is being asked to admit patients routinely that do not fit with a model of care conducive with an Acute Mental Health Unit. ● It was also reported at the meeting that nurses are often required to work short with up to 36 beds open. The branch requests information and on what is the funded bed base and the ward profile. ● The branch request consideration be given to agency staff to fill temporary vacancies and to alleviate excess overtime. ● The members request that a skills Audit be conducted to ensure that all nurses are current with their VPM training and other mandatory education that is required to work on an Acute mental health ward. Please supply the audit results in your reply. ● Additionally, the members would like to request additional CNE hours to support new grads and new staff. ● Members request that a report be completed on the Air-Conditioning Unit in the HDU. The branch has been told that both staff and consumers are needing to wear coats just be comfortable in the unit. ● To date the branch or the NSWNMA (sic) has received no formal consultation around EMHAART. It is an Award requirement that consultation occurs around changes to ways of work and that the LHD formally notifies the NSWNMA [email address] ● the branch has requested a WH@S (sic) inspection be conducted 8-9 November which will cover the Acute Ward HDU and the Community Mental Health. We look forward to working with you on these matters and request a response in writing by 21 October 2022."
The MNCLHD disputes the assertions contained in the letter of 30 September 2022. Ms Whybro, Ms Tu Luli and Ms Halliday were not called to give evidence.
On 13 October 2022, Ms Guinea held a barbecue on site for Association members working at the CHAMHU and CHCMH. According to Ms Guinea. during the barbecue members talked about the work health and safety issues: "Members were very vocal and told me that things had not improved and the WHS issues were still there."
At or around this time, Ms May, Ms Guinea and Ms Veronica Black, Lead WHS Professional Officer for the Association, decided that they would exercise a right of entry pursuant to s 117 of the WHS Act. Ms Black was not called to give evidence.

[2]

The Notice of Entry and Entry on 8 and 9 November 2022

It is not in dispute that Ms May, Ms Guinea and Ms Black each held a WHS entry permit issued pursuant to Division 5 of Part 7 of the WHS Act, which, pursuant to s 117(1), permitted them to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a relevant worker. Pursuant to s 117(2) a WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring.
Sections 117, 118, 119 and 120 are particularly relevant to the present dispute. They provide: 117 Entry to inquire into suspected contraventions (1) A WHS entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of this Act that relates to, or affects, a relevant worker. (2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is occurring. 118 Rights that may be exercised while at workplace (1) While at the workplace under this Division, the WHS entry permit holder may do all or any of the following in relation to the suspected contravention of this Act - (a) inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention, (b) consult with the relevant workers in relation to the suspected contravention, (c) consult with the relevant person conducting a business or undertaking about the suspected contravention, (d) require the relevant person conducting a business or undertaking to allow the WHS entry permit holder to inspect, and make copies of, any document that is directly relevant to the suspected contravention and that - (i) is kept at the workplace, or (ii) is accessible from a computer that is kept at the workplace, (e) warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety emanating from an immediate or imminent exposure to a hazard, of that risk. (2) However, the relevant person conducting the business or undertaking is not required under subsection (1) (d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State. (3) A relevant person conducting a business or undertaking must not, without reasonable excuse, refuse or fail to comply with a requirement under subsection (1) (d). WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units. (4) Subsection (3) places an evidential burden on the defendant to show a reasonable excuse. Notes - 1 At least 24 hours notice is required for an entry to a workplace to inspect employee records or other documents held by someone other than a person conducting a business or undertaking. See section 120. 2 The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth. 119 Notice of entry (1) A WHS entry permit holder must, as soon as is reasonably practicable after entering a workplace under this Division, give notice of the entry and the suspected contravention, in accordance with the regulations, to - (a) the relevant person conducting a business or undertaking, and (b) the person with management or control of the workplace. (2) Subsection (1) does not apply if to give the notice would - (a) defeat the purpose of the entry to the workplace, or (b) unreasonably delay the WHS entry permit holder in an urgent case. (3) Subsection (1) does not apply to an entry to a workplace under this Division to inspect or make copies of documents referred to in section 120. 120 Entry to inspect employee records or information held by another person (1) This section applies if a WHS entry permit holder is entitled under section 117 to enter a workplace to inquire into a suspected contravention of this Act. (2) For the purposes of the inquiry into the suspected contravention, the WHS entry permit holder may enter any workplace for the purpose of inspecting, or making copies of - (a) employee records that are directly relevant to a suspected contravention, or (b) other documents that are directly relevant to a suspected contravention and that are not held by the relevant person conducting a business or undertaking. (3) Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested and the relevant person conducting a business or undertaking. (4) The notice must comply with the regulations. (5) The notice must be given during usual working hours at that workplace at least 24 hours, but not more than 14 days, before the entry. Note - The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988 of the Commonwealth.
Ms May and Ms Black prepared Notices of Entry (Notices) for themselves and for Ms May. Each WHS entry permit holder signed their own Notice. Other than the name and signature of each WHS entry permit holder, the Notices were identical. The Notices: 1. were addressed to "Coffs Harbour Acute Mental & Community Mental Health, Mid North Coast LHD, 342 Pacific Highway Coffs Harbour 2450"; 2. stipulated the date of entry or proposed entry to be "8 & 9 November 2022"; 3. identified ss 117 and 120 as the "purpose of entry"; 4. provided the following addition details of the suspected contravention: "s 19 - Failure to ensure the health and safety of nurses at Coffs Harbour Acute Mental Health inpatient facility & Community Mental Health arising from exposure to occupational violence and failure to manage psychosocial hazards including work overload; poor support and remote and isolated work." 1. listed the records or documents proposed to be inspected pursuant to s 120 (no express reliance was placed on s 118(1)(d)), in two attached documents - Schedule A (in respect of the CHAMHU) and Schedule B (in respect of CHCMH); 2. contained a declaration that: 1. the Association was entitled to represent the industrial interests of workers at the workplace; 2. Rule 5.2.5 was the provision in the union's rules that entitles the union to represent the industrial interests of the workers at the workplace; 3. the suspected contravention related to workers that the union is entitled to represent; and 4. the records or documents proposed to be inspected related to workers the union was entitled to represent.
The Notices were served on MNCLHD on 4 November 2022 by an email sent by Ms Guinea to Ms Jones and Ms Halliday. The covering email read as follows: Dear Penny and Lynne, Please find attached the relevant documents notifying you of NSWNMA intent to conduct a WH&S inspection on 8-9 November 2022 at the Coffs Harbour Mental Health Campus, including Community Mental Health. The officers who will undertake the inspection are Veronica Black, Megan May and Zoe-Anne Guinea. The purpose of the visit is outlined on the Right of Entry documents attached to this email, including Schedule A and Schedule B which outlines what documents you will be required to supply. If you have an (sic) question around the up coming (sic) visit feel free to contact me [phone number]. Regards, Zoe-Anne Guinea Organiser Public Health Organising Team
Both Ms Jones and Ms Halliday were on annual leave on that day and were still on leave on 8 and 9 November 2022, and so they played no part in the entry permit holders' visit on 8 and 9 November. It is unclear how the Notices came to the attention of other persons within the MNCLHD, but in any event Ms Kim Edwards, Acting Associate Director Integrated Mental Health Drug and Alcohol, became aware of the existence of the Notices on or around 7 November 2022. On that day she phoned Ms Guinea to request copies of the Notices. Ms Guinea emailed a copy of the Notices, together with her covering email to Ms Jones and Ms Halliday of 4 November 2022, to Ms Edwards, who in turn forwarded the documents to Mr David Noble, District Manager, Community Mental Health Services.
Both Ms May and Ms Guinea attended the CHAMHU on 8 November 2022. Although a Notice had been given for Ms Black, Ms Black did not attend. Ms Katrina Lee, NSWNMA Lead Organiser also attended, but she did not enter the CHAMHU.
Ms May, Ms Guinea and Ms Lee met Ms Edwards, Ms Jeanette Mills, District Nurse Manager, Ms Yvonne Connett, Manager Coffs Harbour Community Mental Health, and Ms Jess McEnvoy, Nurse Unit Manager, in an office outside the CHAMHU. Ms Edwards and Ms Connett were both called to give evidence and were cross examined.
In respect of the entry on 8 November 2022, the following matters are not in dispute: 1. Ms May spoke about why they were there (the exact words spoken is a matter of dispute); 2. Ms May asked a number of questions about the current systems of work within the CHAMHU and the CHCMH and verbal answers where provided (the exact questions asked and answers given is also a matter of dispute); 3. the permit holders were allowed entry to the CHAMHU and were allowed to observe the high observation unit (HOU) from behind windows and were allowed to speak with staff; and 4. Ms Edwards advised Ms May and Ms Guinea that further time would be required to collate the documents sought in the Schedules to the Notices.
Ms Edwards gave the following evidence regarding discussions held with Ms May and Ms Guinea during the visit on 8 November 2022: "I told Ms May I thought the request for documents was very broad and asked if she could help us understand what the suspicion was. Neither Ms May nor Ms Guinea provided any further detail as to the "concerns" referred to by Ms May or the suspected contravention referred to in the Notices. At no time were the details set out in paragraph 17 of the statement of Ms May or paragraph 11 of the statement of Ms Guinea provided to me. Ms May and Ms Guinea also did not provide me with any further detail about the documents sought. … Based on the information provided in the Notices and by Ms May and Ms Guinea verbally, I did not understand what the suspected breach of the WHS Act was. I was also concerned that the categories of documents referred to in the Notices appeared to be extremely broad. I indicated to Ms May that collating some of the documents requested was not straightforward and we would need time to do that. However, I allowed entry because I thought it would be a serious matter to deny entry to a union official under WH&S legislation and I have been taught throughout my nursing career to work with the Association in the spirit of collegiality."
Ms Connett took handwritten notes during the permit holders visit which she later typed up in accordance with her usual practice. There was no challenge to the authenticity of these notes and given their contemporaneity I consider these notes to be the best evidence of what was said during the visit.
Ms Connett gave the following evidence: "I recall Ms Edwards told Ms May that the document request was very broad and asked about the suspected contravention. I recorded Ms May's response to this question on page 1 of my notes. I do not recall Ms May explaining what the suspected contravention was."
However, Ms Connett's notes include the following: "Kim - making sense of contravention document - very broad. - If suspecting breach WHS in unit and CMH - request is very broad? Megan ● acknowledged normal process - never been through ● "don't stress - we are nice people". ● Had a few reports over the years ● nothing to do with something that has happened yesterday. ● long piece of work ● history of people not appropriate for here ● an assault a few years back, one of the CH workers ● A number of things that have happened ● process we have to go through on behalf of members ● not a personal attack ● Is system fit for purpose ● is there stuff we can recommend ● fresh set of eyes ● investigate all sorts of units over State - not just Coffs ● systems appropriately staffed - appropriate environments for clinician and client's ● 'whole gamete' of how the system works Kim - bulk of information huge. ● specific dates or incidences? better able to tailor info ● have some gathered, too voluminous to redact names Megan acknowledged ● look at what you have ● served documents - requiring info in entirety. ● reason - need historical component ● longer term factors - predictors ● particular people 'causing problems'? ● risks presenting with may not be managed - best ability of facility. ● Need to allow association to assess risk that IS/MAY be at site. ● members concerned about admission and exclusions MHU ● how some patients 'come across' at interview ● data broad - not different to requested of other facilities ● longer term to look being consistent over time. ● Familiar with 'problematic consumers' and patients - regulars to facility 'cause all sorts of problems' ● to work with you - build capability ● ensure facility is, 'in our view' safe for members ● capacity to manage risks on site. ● CMH very risky - recent death of CMH nurse ● documents in accordance with WHS Act 2011 so will require that info. ● If not today - later"
Later in her notes Ms Connett recorded: "Q- admission and exclusion criteria "where some of the problem is coming from" advised no criteria for MHU. ● Via MH Act ● DMHF - MI and MD explained ● Medical decision - psychiatrist and psychiatric registrars support team … Q - concern re coming on to unit intoxicated. How managed? ● via ED. Breathalyser portable to ward and ED. UDS. ● Discuss Psychiatrist and treating team for plan and input required. … Q - ~ intoxicated . Psych re assesses in ED before coming to ward? ● CNC and Reg in ED. ● follow MH Emergency Department Guidelines ● must be fit for interview - judgement and decision making. ● Hold back or over night ● Acute intoxication not to ward without a clearance ● must remain in ED until able to be assessed"
Ms May, Ms Guinea, Ms Edwards and Ms Connett were each cross examined about the conversations that occurred on the morning of 8 November 2022. Arising from the evidence outlined above and the evidence given in cross examination I accept that Ms Edwards said words to the effect that she did not understand what the suspected contravention was or what the suspected contraventions were, and that the request for documents was very broad.
However, I also accept that prior to gaining entry to the CHAMHU on 8 November 2023 Ms May elaborated upon the 'suspected contravention' of the WHS Act identified in the Notices by explaining, that staff were being exposed to violence due to: 1. inappropriate/inadequate staffing; 2. inappropriate people, including intoxicated people being admitted into the CHAMHU and that contributing to or causing this risk, was the absence of admission and exclusion criteria and inadequate assessment and/or management of intoxicated people arriving in the emergency department of the hospital; and 3. the risks presented by regularly admitted patients known to cause problems were not being managed to the best of the facility's ability.
Otherwise, it appears that Ms May spoke about the members' concerns at a high level and did not provide the level of detail set out in paragraph 17 of her statement which I set out in paragraph 22 above.
I also accept that Ms May used various expressions -- such as "Need to allow association to assess risk that IS/MAY be at site" - which the MNCLHD submitted indicated she was not inquiring into a particular 'suspected contravention' of the WHS Act, as she was permitted to do pursuant to s 117, but rather, she and Ms Guinea intended to conduct an 'inspection' or 'audit' of the CHAMHU and CHCMH to identify possible risks to the health and safety of workers. I will return to this further below.
After the visit to the CHAMHU concluded, arrangements were made for Ms May and Ms Guinea to meet with the CHCMH nurses the following day, accompanied by Mr Noble. Mr Noble was not called to give evidence.
Both Ms May and Ms Guinea maintain that an arrangement was made for them to meet Mr Noble and Ms Connett on 9 November 2022 at 8am, as the nurses working for the CHCMH leave their office at around 8:30am to 9:00am to attend to patients in the community. However, Mr Noble did not arrive until around 9:45am, with the result that Ms May and Ms Guinea could not speak with the nurses. The MNCLHD disputes that this was the arrangement, however I need not resolve this factual contest as there is no dispute raised by the Association to the effect that the right of entry to the workplace was impeded or that the entry permit holders were impeded from consulting with relevant workers.
It is agreed between the parties that Mr Noble gave an overview of CHCMH and he and Ms Connett then escorted Ms May and Ms Guinea on a 'walk-through' of the facility.
Ms Connett again took handwritten notes, which she typed up. Of relevance are the following notes: "Q- Raised by members = risk of violence and aggression. In the last couple of years - Coffs - How many incidents related to violence and aggression? ● DN in the last 12 months - no. ● 24 months? take on notice. Q - There was a bad incident in the last 24 months! CMH? ● DN- incident on the ward? ● Last 12 months reviewed. ● Staff encouraged to report incidents, incl admin. ● DN - request details of incident referred to … Q - HV RAx - What duress and alarm system for staff in field? ● Y- training and orientation ● Eg If things don't look right don't go in. Park vehicle to leave quickly. ● If new client 2 go. ● If something does go wrong - call reception with the "Code" - Reception aware to enact response. Q - Community duress? ● No - have mobile phones. Megan - stated first LHD that doesn't have in field. ● DN - Has account, quotes, approval for personal alarm system. ● current mobiles all need replacement - compatibility Megan ● incidents don't reflect existing aggression ● "Your duress system is inadequate." ● Concern re interim measures ● Long talk re encouraging reiteration to staff every time ○ Stated re fatality in CMH in last 2 years of a nurse -triggers identified post incident ○ Should have been closely monitored ○ in absence of adequate duress system remind staff to look for signs ○ Stated caseloads impact - focus 100% on that then not ax little triggers ● Say No - 2 people have to do this - the whole time. ● feeling unsafe at the door too late. DN - Disagreed we have an inadequate system ● Policy ● movement book ● system for staff to ring in with the code ● better systems out there - moving toward. Megan ● you have mitigating - don't have best practice."
Ms Connett's notes also record that the group discussed caseloads, EMHAART implementation, staff vacancies and training.
Ms Connett's notes support a finding that Ms May and Ms Guinea conveyed that they suspected that staff in CHCMH were being exposed to the risk of violence due to a lack of a personal duress alarm; being sent to see patients alone; having excessive caseloads due to staff vacancies; and inadequate training.
During Ms May's and Ms Guinea's visit, on either 8 or 9 November 2022, they were provided with copies of some documents, purportedly in partial answer to the request for inspection of documents listed in Schedule A and/or B of the Notices. It was agreed with Ms Edwards, presumably on 8 November 2022, that the MNCLHD would provide copies of the balance of the documents requested within a week.
On 10 November 2022 Ms May emailed Ms Edwards, (with a copy of the email also being sent to Ms Mills, Ms Jones, Ms Halliday and Mr Noble), in which she said: "I am just confirming the final agreement from MNCLHD that the Association will be forwarded all outstanding documents requested in Schedule A and Schedule B (attached above) within one week's time. The Association is happy to make that deadline applicable from today's date making the deadline 5pm next Thursday, 17 November 2022. As discussed with Janette Mills (when I was on site), if there is going to be a longer period of time required to provide information, could you please advise me via email when that completion date will be."
Ms Edwards responded to that email on 10 November 2022 as follows: "Hi Megan. Thanks for your email. I was going to email Zoe to ask for the list of outstanding papers for your team. Should we contact you was Zoe if we need to clarify any questions that may come up? Thanks K"
Ms May responded on the same day indicating that Ms Edward should contact her if she needed any clarification regarding documents to be sent as per the two schedules, but that she should contact Zoe for all other industrial matters.
On 17 November 2022 Ms Edwards sent an email to Ms May which read as follows: "Hi Megan Just tried to call - sorry I missed you. I am preparing the documents as requested on Schedule A and B. As some of the information will be sensitive and confidential to MNCLHD, would you mind confirming for us the measures the Association has in place regarding safety and security of such documents? Additionally, due to unplanned leave, we anticipate that some documents will be forwarded today while others will require a further extension until Friday, 25 November 2022. Please feel free to call me on the numbers below to discuss if you need. Thanks K"
Ms May responded the same day to explain how the Association protects access to electronic documents and to advise that the Association "complies with all privacy requirements in accordance with the Privacy Act 1988 (Cth) … and the Australian Privacy Principles …" She also noted the request for an extension for delivery of some documents by 25 November 2022 and said, "we look forward to receiving all the requested advice by that date."
Ms Edwards responded shortly after receiving Ms May's email with an email which simply stated: "Thanks Megan for your information."
On 18 November 2022 Ms May emailed Ms Edwards regarding concerns with the adequacy of the documents provided to her when she visited the site. On the same day and on 25 November 2022 Ms Edwards emailed to Ms May copies of numerous further documents, purportedly in response to the request for inspection of documents listed in Schedule A and/or B of the Notices. Some of the documents provided were redacted, such that they did not reveal the names of employees and patients, and in some cases, patient health information was also redacted.

[3]

The Dispute

On 29 November 2022 Ms Black and Ms May phoned Ms Edwards and expressed their view that the MNCLHD had not provided all the documents sought in the Notices and had improperly redacted some of the copy documents that had been provided. According to Ms Edwards, and I accept, Ms Black said to Ms Edwards on three separate occasions during the call that Ms Edwards had acted "illegally", and this caused Ms Edwards to be concerned and upset.
On 30 November 2022 Ms Edwards emailed Ms May stating, inter alia: "To ensure we have considered and exercised our responsibilities with regard to staff and patient privacy, the IMHAOD Directorate will be seeking further advice from the LHD legal services before providing any further information."
On 1 December 2022 Ms May emailed Ms Edwards regarding the matters they had discussed on 29 November 2022 and setting out the reasons why the Association contended it was entitled to further and unredacted copy documents. It is not necessary to set out the whole of that email as the Association's arguments have now crystallised in this proceeding. However, the following extract from the email is relevant: "As previously discussed, the Association is obtaining records and documents to assist us in our investigation to assess levels of work health and safety risk at the workplace. Whilst we are not interested in individual patient names on health records, we do require some form of unique identification for each patient (previously suggested by the Association as provision of the patient ID number) so we can appropriate assess levels of risk and repeated risk posed by particular individuals. Your email advice below is a major cause of concern to the Association that the continued delays in the provision and the reduction of documents sought under WHS RoE is inhibiting our ability to complete our investigation into the serious WHS issues at Coffs Harbour Mental Health."
On 5 December 2022 Ms Edwards emailed Ms May and relevantly stated: "The records provided to you to date have been provided in good faith and in recognition of MNCLHD's relationship with the Association. This is so despite MNCLHD's position that the Notice was not validly issued. First, the Notice does not disclose any suspected contravention of the WHS Act, as is necessary to enliven sections 117 and 120 of the WHS Act. This is clear on the face of the Notice, and also from your subsequent correspondence to me on 1 December 2022 at 10:58am, which stated that the association is "obtaining records and documents to assist us in our investigation to assess levels of work health and safety risk at the workplace". Further, the Notice does not provide sufficient particulars of what the suspected contravention is. MNCLHD is therefore not able to determine the scope of the enquiry it is required to make, and specifically which employee records or other documents requested by you are directly relevant and responsive to the Notice. Finally, the large majority of the categories of documents described in Schedule A and B go well beyond the ambit of s120 of the WHS Act. The Association has requested categories of documents that are extremely broad and do not appear to relate to any particular suspected contravention of the WHS Act. On this basis, MNCLHD will not be providing further records to you in response to the notice. Kind regards, Kim Edwards"
The parties engaged in further correspondence regarding the production of documents pursuant to the Notices throughout December 2022. On 14 March 2023 representatives of the Association, including Ms May, met with representatives of the MNCLHD, including Ms Edwards, via Teams, to try and resolve the issues surrounding the production of documents, however no resolution was reached.
On 1 May 2023 the Association filed the present application seeking orders "to the effect that the records and documents sought in the Entry Notice but only partially provided or not yet provided be provided by the Respondent to the WHS entry permit holders and the Association".
The matter came before me on 2 May 2023. On that day the parties agreed to try and resolve the matter through conciliation. I conciliated the matter on 2 May 2023 and again on 31 May 2023 and while the parties were able to reach agreement in respect of some of the documents sought by the Association, and the Association agreed to modify some of the categories of documents, agreement could not be reached to wholly resolve the dispute. Consequently, the matter was scheduled for hearing.
When the matter came before me for hearing on 30 August 2023 only seven categories of documents remained in dispute and the description of each category had been narrowed or revised from that found in the Schedule to the Notices. The copies of documents sought by the Association, which have not yet been provided by the MNCLHD, or which have only been provided in redacted form, are: Item No in Schedules Revised Document Description Status Item 3 (Sch A & B) The most recent Security Improvement Audit and resultant Security Improvement Plan for the Coffs Harbour Acute Mental Health Unit and Community Mental Health, and the policies and procedures relating to risk assessments conducted and how controls are determined.1 Not provided Item 5 (Sch A & B) VPM/PMVA training records for nursing staff including dates of training, mode of delivery, and showing which staff have completed each component of the training including - online component, personal safety and team-based restraint, and which staff have not; including unredacted staff names. Partially provided: MNCLHD provided a report with employee names redacted and showing numbers of employees who have not completed the training. Item 6 (Sch A) Rosters and daily allocation sheets for the preceding six months with unredacted staff names, pseudonymised patient names/numbers, and other patient and health information included. Partially provided: rosters provided with employee names removed. Item 9 (Sch A) Ims+ entries relating to violence and/or aggression for the 12 months to date, with unredacted staff names, pseudonymised patient names/numbers, and other patient and health information included. Partially provided - IMS+ entries provided with employee names removed and patient and health information removed. Item 10 (Sch A) Ims+ entries relating to staffing and/or skill mix for the 12 months to date, with unredacted staff names, pseudonymised patient names/numbers, and other patient and health information included. Partially provided - IMS+ entries provided with employee names removed and patient and health information removed. Item 16 (Sch A) Copy of risk register, specifically extracts of the WHS risk register in place at the time of the Entry Notice that apply to the Coffs Harbour Acute Mental Health Unit and Community Mental Health (but may also apply District-wide) and should include details on violence and aggression, role overload and working in isolation. Not provided. Item 6 (Sch B) Caseload numbers for each staff member for the preceding 6 months, with unredacted employee names. Partially provided, with employee names redacted.

[4]

The Parties' Positions

While the Association is the moving party and bears the legal burden of establishing an entitlement to the orders sought, it is convenient to approach the matter, by considering the arguments of the MNCLHD as to why the orders should not be made and then considering the Association's response.
There is no argument that Ms Guinea and Ms May held valid WHS entry permits and that "relevant workers" within the meaning of Part 7 of the WHS Act worked at the CHAMHU and the CHCMH.
The MNCLHD accepts that the Commission has the power to order it to provide documents to the entry permit holders pursuant to s 142(3)(e) of the WHS Act, but only if the entry permit holders were entitled to access those document under another provision of the WHS Act, because s 142(5) prevents the Commission from conferring any additional or inconsistent rights on a WHS entry permit holder, and such an order remains at the discretion of the Commission. I agree with this submission.
Section 142 is found in Division 6 of Part 7 of the WHS Act. Division 6 provides as follows: Division 6 Dealing with disputes 141 Application for assistance of inspector to resolve dispute If a dispute arises about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act, any party to the dispute may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the dispute. 142 Authorising authority may deal with a dispute about a right of entry under this Act (1) The authorising authority may deal with a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act (including a dispute about whether a request under section 128 is reasonable). (2) The authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. (3) If the authorising authority deals with the dispute by arbitration, it may make one or more of the following orders - (a) an order imposing conditions on a WHS entry permit, (b) an order suspending a WHS entry permit, (c) an order revoking a WHS entry permit, (d) an order about the future issue of WHS entry permits to one or more persons, (e) any other order it considers appropriate. (4) The authorising authority may deal with the dispute - (a) on its own initiative, or (b) on application by any of the following to whom the dispute relates - (i) a WHS entry permit holder, (ii) the relevant union, (iii) the relevant person conducting a business or undertaking, (iv) any other person in relation to whom the WHS entry permit holder has exercised or purported to exercise the right of entry, (v) any other person affected by the exercise or purported exercise of the right of entry by a WHS entry permit holder, (vi) the regulator. (5) In dealing with a dispute, the authorising authority must not confer any rights on the WHS entry permit holder that are additional to, or inconsistent with, rights exercisable by the WHS entry permit holder under this Part. 143 Contravening order made to deal with dispute A person must not contravene an order under section 142 (3). WHS civil penalty provision. Maximum penalty - (a) in the case of an individual - 115 penalty units, or (b) in the case of a body corporate - 575 penalty units.
The MNCLHD submitted that the Commission should not make an order requiring it to provide the balance of the documents sought for one or more of seven reasons. I set out below each of those seven reasons and a summary of MNCLHD's general arguments in support of those reasons, the Association's arguments in response, followed by my determination of the legal and factual aspects of the contest. Under the heading 'Decision' I set out my decision in respect of each outstanding category of documents sought by the Association, by reference to my determinations and finding of facts with respect to the seven reasons.

[5]

First Reason: The entry permit holders did not have the requisite purpose or reasonable suspicion

The MNCLHD submits that the entitlement to inspect and make copies of documents pursuant to ss 118(1) and 120 of the WHS Act depends upon that person first having a right of entry to the relevant workplace under s 117. That submission cannot be gainsaid.
The MNCLHD submits that section 117 has three requirements, namely: 1. the person is a WHS entry permit holder; 2. the person's purpose in entering the workplace is to inquire into a suspected contravention of the WHS Act that relates to, or affects, a relevant worker; and 3. the person reasonably suspects before entering the workplace that the contravention has occurred or is occurring.
Again, such submission cannot be gainsaid.
The MNCLHD submitted in its Outline of Submissions that the Commission would not be satisfied that Ms May and Ms Guinea held the requisite purpose or reasonable suspicion relating to a particular convention of the WHS Act, where: 1. the Notices relied on s 19 of WHS Act, being the general duty of care rather than any specific duty, expressed the suspected contravention in wide and undetailed language, without providing adequate particulars of the contravention; 2. no further details of any suspected contravention were provided to the District's representatives when Ms May and Ms Guinea attended to enter the CHAMHU or CHCMH or in subsequent communications with the MNCLHD, despite the MNCHLD's requests; 3. Ms May and Ms Guinea's statements at the time of entry indicate that they were engaging in a general risk audit rather than inquiring into any specific suspected contravention; 4. Ms May subsequently described their entry and document requests as being to "assess levels of work health and safety risk at the workplace", which is not the language of suspicion as to a particular contravention; 5. Ms May and Ms Guinea sought to inspect a wide range of documents in widely expressed categories which have the appearance of fishing; and 6. the matters referred to in Ms May's and Ms Guinea's statements as giving rise to a suspected contravention are expressed broadly and in hindsight, in circumstances where no contemporaneous evidence such as file notes have been provided.
MNCLHD submits, by reference to R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 (Rondo) at [53] (Smart AJ, Spigelman CJ and Simpson J relevantly agreeing) and Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000 (Acciona) at [65] - [66] (Murphy C) that a 'reasonable suspicion' means something which would create in the mind of a reasonable person an apprehension or fear of the relevant matter, being something more than a possibility or reason to consider or look into the possibility of its existence, but less than a reasonable belief.
The MNCLHD sought to establish that Ms May and Ms Guinea did not 'reasonably suspect' that a contravention of the WHS Act had occurred or was occurring, in part, by eliciting responses from them in cross examination to the effect that they thought there was a 'possibility of a contravention' [1] , picking up the language used by Smart AJ in Rondo. However, as I will explain, such responses only confirm that Ms May and Ms Guinea held a suspicion. The question of whether the suspicion was reasonable involves an objective inquiry into the nature of the material Ms May and Ms Guinea relied upon to form their suspicion.
The definition of "suspect" according to the Macquarie Dictionary, online edition, 2023 is: 1. to imagine to be guilty, false, counterfeit, undesirable, defective, bad, etc., with insufficient proof or with no proof. 2. to imagine or believe to be rightly chargeable with something stated, usually something wrong or something considered as undesirable, on little or no evidence: to suspect a person of murder. 3. to imagine to be the case or to be likely; surmise: I suspect his knowledge did not amount to much. 4. to imagine something, especially something evil, wrong, or undesirable, to be the case; have suspicion. 5. someone who is suspected; a person suspected of a crime, offence, or the like. 6. suspected; open to suspicion.
The act of suspecting something, that is, holding a suspicion, is really nothing more than a feeling or thought that something, is possible, likely or true, and it can be held with insufficient proof or with no proof at all. What s 117(2) requires however, is that any suspicion held by a WHS entry permit holder be 'reasonably' held. As I have already said, this involves an objective inquiry into the nature of the material relied upon to form the suspicion. Suspicion with no or inadequate proof, will not satisfy the requirement of s 117(2).
It pays to consider exactly what Smart AJ said in Rondo at [53]: "These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s. 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances."
It is plain that in stating that a reasonable suspicion requires more than a possibility, Smart AJ was focusing on the 'something which would create more than a possibility', that is, the reliability and nature of the material relied on to form the suspicion, rather than describing the nature or extent of the suspicion holder's belief. While the material relied upon may be inadmissible in evidence, it must nevertheless have, objectively, some probative value so as to afford reasonable grounds for the formation of the suspicion. As the MNCLHD submitted, the probative value of the material must be assessed in light of its source, content and surrounding circumstances.
In Acciona Commissioner Murphy stated at [67]: "In the present matter, the question to be answered was whether or not there was some factual basis, some material or materials with probative value, which would create in the mind of a reasonable person a suspicion that Pacifico had contravened, or was contravening, s 19 of the WHS Act by failing to ensure, so far as is reasonably practicable, the psychological health of workers engaged on the Site."
This approach was approved by Industrial Commissioner Hartigan in the Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] QIRC 188 (First Enco Precast Decision) at [108]. [2] She concluded in that case that hearsay information received via a safety hotline, which was then conveyed orally to the WHS entry permit holders, was of probative value "in so far as it identified potential contraventions of the WHS Act as it referred to matters which could potentially be in contravention of s 19 of the WHS Act and s 40 of the [Qld] Regulation," and that such information "afforded reasonable grounds for the suspicion to be formed."
In Acciona, however, Commissioner Murphy considered that the evidence relied upon by the WHS entry permit holders - being hearsay evidence and direct observation of workers feeling stressed, anxious and uncomfortable at work - lacked sufficient probative value to form the basis of a reasonable suspicion that the PCBU had contravened, or was contravening, section 19 of the WHS Act. In reaching this view Commissioner Murphy remarked, at [71]: "The exercise of right of entry by WHS entry permit holders is an important mechanism by which unions, such as the CFMEU, are able to investigate suspected contraventions of the WHS Act. It is a right that should only be exercised responsibly and for its intended purposes. The health and safety of workers in the workplace, including their psychological health, especially in inherently dangerous industries such as civil construction, is an important issue. The attempted use of rights of entry on the basis of the sort of non-probative evidence relied upon by the CFMEU in this matter has the potential to undermine the very important purpose for which rights of entry exist."
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2023] NSWIRComm 1076 (Primo) I considered that an email sent and phone calls made, to the WHS entry permit holder by workers at the Primo factory outlining various safety concerns, while hearsay in nature, provided sufficient probative value for me to conclude the WHS entry permit holders held a reasonable suspicion that Primo had contravened, or was contravening, s 19 of the WHS Act. Notably Primo did not challenge the authenticity of the email or otherwise challenge that one of the WHS entry permit holders had received phone calls from members informing her of safety concerns.
Ms May and Ms Guinea's acceptance in cross examination that they believed there was a 'possibility' of a contravention did not amount to an admission that they therefore did not 'reasonably suspect' a contravention of the WHS Act. Rather this was an unremarkable confirmation by each of them that they had a feeling or thought that the MNCLHD was contravening the WHS Act, which is all they were required to think or feel, provided such thought or feeling was based on material with probative value, in order to be permitted to enter the workplace for the purpose of inquiring into the suspected contravention. Obviously if they knew as a matter of fact that a convention had or was occurring, that is, they had established all the factual elements of the contravention there would be no need to conduct an inquiry. The rights afforded by ss 117 and 118 of the WHS Act are enlivened when a WHS entry permit holder reasonably considers, based on sufficiently probative material, that a contravention of the WHS Act is a possibility.
As Ms May confirmed in re-examination, she thought the likelihood that there was a contravention of the WHS Act was 100% [3] , however the strength of Ms May's conviction is ultimately not the issue. The question is whether her and Ms Guinea's feeling or thought that there could be a contravention was reasonable, based on an objective assessment of the material they relied upon to form their feeling or thought.
As I confirmed in Primo, hearsay information can be of sufficient probative value to ground a reasonable suspicion. The Association submitted that Commissioner Murphy's statements to the contrary at [70] in Acciona were "no more than a conclusion in that matter and does not state a general principle" and that as a permit holder is most likely to become aware of potential contraventions of the WHS Act as a result of [hearsay] reports from members, it should be "uncontroversial that a reasonable suspicion may be based on hearsay material or materials which may be inadmissible in evidence".
I agree with those submissions. It may be observed that the 'surrounding circumstances' in Acciona was what might be colloquially described as a 'turf war' between the CFMEU and the AWU and that the alleged cause of the risk to workers' health and safety was alleged bullying and harassment by a worker opposed to other workers becoming members of the CFMEU. It seems to me that Commissioner Murphy, in finding that the material relied upon by the WHS entry permit holders was not sufficient to enable them to 'reasonably suspect' a contravention of the WHS Act, was anxious to ensure that WHS rights of entry were properly directed toward the Act's intended purpose of protecting the health and safety of workers and not some other purpose.
In the present matter both Ms May and Ms Guinea formed their suspicions that the MNCLHD were contravening s 19 of the WHS Act based on information given to them by other Union officials, but moreover, from personal conversations with members who worked at the CHMAHU or with CHCMH. The MNCLHD did not seriously submit that those conversations had not occurred, despite the lack of file notes to support Ms May's and Ms Guinea's accounts of the conversations. Rather, the MNCLHD submitted that to form a reasonable suspicion that a contravention of s 19 of the WHS Act had occurred or was occurring, the WHS entry permit holders must identify not only a risk to workers' health and safety, but the reasonably practicable measures that should be taken, but which were not being taken, to eliminate or reduce that risk.
I accept that the mere existence of risk to workers' health and safety will not, alone, constitute a contravention of s 19 of the WHS Act. Section 19 imposes a duty on a person conducting a business or undertaking (PCBU) to ensure, so far as reasonably practicable, the health and safety of workers while they are at work in the business or undertaking. Section 17 of the WHS Act provides that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety, so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
There are many occupations which have the potential to expose workers to a considerable degree of risk to their health and safety. To be in breach of s 19 there must have been a failure on the part of the PCBU to take, reasonably practicable measures, to prevent any identifiable risk from eventuating or to minimise those risks: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [14] - [15].
The Association submitted that "a permit holder may reasonably suspect a contravention has occurred or is occurring for the purposes of s 117(2) of the WHS Act without knowing all the details of the time, date or circumstances of the contravention" and that the "purpose of conferring the right to enter premises under s 117 and the rights in ss 118-120, is to permit inquiring to be conducted into the suspected contravention." While I accept that submission, I also consider that to form a reasonable suspicion the permit holder must have some probative material that indicates, expressly or implicitly, that the PCBU is not taking certain reasonably practicable measures to ensure the health and safety of workers. Knowledge of the mere existence of a risk, without some idea of what reasonably practicable measures the PCBU could take to eliminate or reduce the risk, will not suffice.
In most instances remedial measures will be implicit and obvious and the WHS entry permit holder will have completed the requisite suspicion. For example, in Primo the WHS entry permit holder received information from a worker that the roof space of the factory posed a major hazard to workers working in the roof, as there were no signs or safety barriers and insufficient lighting. From that information the WHS entry permit holder would be entitled to form the view that the PCBU may be contravening the WHS Act by exposing workers to the possibility of tripping and falling (and possibility other hazards) when working in the roof space, by failing to provide adequate lightening, signage and/or safety barriers in the roof space.
In the present matter I do not consider that the evidence was sufficient to establish that Ms May and Ms Guinea reasonably suspected a contravention of the WHS Act prior to 15 August 2022. While Ms May and Ms Guinea received information from Ms Malone in or around July 2022 to the effect that members' health and safety were being put at risk and were provided with copies of the two letters Mr Holmes had sent to Ms Jones, the information was at best second-hand hearsay which I do not consider to be of sufficient probative value to base a reasonable suspicion of a contravention of the WHS Act.
However, I consider that the information Ms May and/or Ms Guinea received from personal conversations with members at: 1. the meeting Ms Guinea had with relevant workers on 15 August 2022; 2. the online meeting Ms Guinea and Ms May attended with relevant workers on 29 September 2023; 3. the telephone discussions Ms May had with individual members after 29 September 2023; and 4. the barbeque meeting Ms Guinea held with members on 13 October 2023, was sufficiently probative to ground a reasonable suspicion that the MNCLHD was exposing staff at the CHMAHU and CHCMH to the risk of being physically injured by violent and aggressive patients and to the risk of psychological injury.
Further, and importantly, the information provided by members were that staff were being exposed to these risks due to: 1. staff shortages, resulting in staff not having adequate back up or support when dealing with aggressive or difficult patients and experiencing fatigue, stress and anxiety due to having to care for too many patients; 2. inappropriate admissions to the CHMAHU, including people affected by drugs or alcohol, due to a lack of admission criteria; 3. a lack of management of regularly admitted patients known to cause problems through violent or aggressive behaviours; 4. overcrowding of patients; 5. unsuitable skill mix of staff, in particular too many junior staff rostered together; 6. a lack of training in how to deal with violent or aggressive patients; 7. inadequate risk assessment and duress response systems for CHCMH staff undertaking home visits; and 8. in the HOA of the CHMAHU, CCTV cameras not working, faults in the duress alarm system and poor lines of sight from HOA to the nurses' station.
It is implicit from this information that the members considered that the MNCLHD were failing to take reasonably practicable measures to ensure their health and safety namely: 1. hiring more staff, including, if need be, from a casual pool; 2. developing and enforcing appropriate admission criteria for CHMAHU; 3. developing systems to better manage regularly admitted patients known to cause problems through violent or aggressive behaviours; 4. maintaining appropriate patient numbers; 5. ensuring adequate numbers of experienced staff are rostered on with more junior staff; 6. providing better training on how to deal with aggressive or violent patients; 7. undertaking better risk assessments and improving the duress response systems for CHCMH staff undertaking home visits; and 8. improving lines of sight in the HOA and repairing the CCTV and duress response systems.
I am satisfied that Ms May and Ms Guinea reasonably suspected, before entering the workplace, that a contravention of s 19 of the WHS Act, as identified in the preceding three paragraphs, had occurred, or was occurring.
The other arguments made by the MNCLHD as why the Commission would not be satisfied that Ms May and Ms Guinea held the requisite purpose or reasonable suspicion relating to a particular convention of the WHS Act may be dealt with briefly.
To the extent it is said that Ms May and Ms Guinea did not hold a reasonable suspicion relating to a particular contravention (and so did not enter the workplace to inquire into that contravention), because they expressed the suspected contravention in wide and undetailed language, without providing adequate particulars of the contravention, I reject that submission.
It is the case that the Notices described the suspected conventions in brief and high-level terms. There is an argument, which the MNCLHD raised as its second reason why the Commission would not make the orders sought by the Association, that by failing to provide adequate particulars of the suspected contraventions the WHS entry permit holders failed to provide valid notices under the WHS Act. I address that argument below. However, even if the notices were not valid for this reason, that would not mean that the WHS entry permit holders did not hold a reasonable suspicion, or that they did not enter the workplace or request documents for the purpose of inquiring into that suspicion.
In Primo at [175] I noted that: "The provision of as detailed particulars as is practicable will hopefully enable the PCBU to be both satisfied that the WHS entry permit holder holds a reasonable suspicion of a contravention and is therefore entitled to enter the workplace, but will also facilitate the prompt inquiry into and remediation of, any work health and safety risk."
However, the absence of particulars in a notice given pursuant to ss 119 or 120 does not negate the existence of a reasonable suspicion held by the WHS entry permit holder.
MCNLHD contended that no further details of any suspected contravention were provided to the MNCLHD's representatives when Ms May and Ms Guinea attended to enter the CHAMHU or CHCMH or in subsequent communications with the MNCLHD, despite the MNCHLD's requests and that this pointed to Ms May and Ms Guinea not holding the requisite reasonable suspicion or engaging in the authorised purpose. As I explained at [41] and [49] above, this is not factually correct, although I accept that the details provided were not as complete as set out in the statements of Ms May and Ms Guinea tendered in evidence in this proceeding. However, again, the failure to provide further oral particulars of the suspected contravention does not the negate the existence of a reasonable suspicion held by the WHS entry permit holder.
The MNCLHD point to statements made by Ms May and Ms Guinea at the time of entry which it says indicated that they were engaging in a general risk audit rather than inquiring into any specific suspected contravention. I accept that there was language used by Ms May and/or Ms Guinea which could have suggested that they proposed to do something other than inquire into the suspected contraventions. I referred to some of this language at [43]. However, I do not think that the use of this language indicated that Ms May and Ms Guinea did not reasonably suspect a contravention or that they proposed to enter the workplace for a purpose other than to inquire into the suspected contraventions.
I discussed in Primo at [126] ff the distinction between a WHS entry permit holders right to inquire under s 117, a health and safety representative's (HSR) right to investigate and inquire under s 68 and an inspector's right to investigate under s 160. It is certainly the case that the rights afforded to a WHS entry permit holder to inquire into a suspected contravention are less than, and different to, those accorded to HSRs and inspectors. Nevertheless, a WHS entry permit holder can, pursuant to s 118(1)(a), "inspect any work system, plant, substance, structure or other thing relevant to the suspected contravention" and, pursuant to s 118(1)(d) may inspect and make copies of documents. Thus, references by Ms May and Ms Guinea to conducting an 'inspection' are accurate. I also consider that making an 'assessment' of the risk forming part of the suspected contravention - that is, making a judgment as to whether there is a factual basis upon which it could be concluded that the PCBU has contravened the WHS Act, as suspected, is the very process a WHS entry permit holder will engage in when inquiring into a suspected contravention.
I do not consider that the language used by Ms May or Ms Guinea to describe the task they proposed to perform on their entry to the workplace or in making the requests for copy documents, including reference to conducting an "investigation", indicated that they did not reasonably suspect a contravention of the WHS Act or that their purpose in entering the workplace and in making requests for documents was for anything other than inquiring into the suspected contraventions.
In relation to the submission that Ms May and Ms Guinea did not hold the requisite suspicion or purpose because they sought to inspect a wide range of documents in widely expressed categories which have the appearance of fishing, I reject that submission. It is possible that some of the documents requested, and over which there remains a dispute, are not directly related to the suspected contraventions. This is MNCLHD's sixth reason why the Commission would not make the orders sought. I deal with that issue below. While I accept that a wide request for documents may be indicative of a lack of the required suspicion, such a request will not of itself disturb an otherwise established factual basis for the suspicion, as I have found existed in this case.
A wide request for documents could also indicate that an entry is not being made for the authorised purpose of inquiring into a suspected contravention. However, the width of the request would need to be egregious and/or there would need to be other evidence to support a finding that the WHS entry permit holder was entering the workplace for a purpose other than to inquire into a suspected contravention before I would be prepared to find, in the face of the WHS entry permit holder reasonably suspecting a contravention of the WHS Act, that documents were sought for an ulterior purpose. In any event that was not the submission made by the MNCLHD.
Lastly, it is said by the MNCLHD that the matters referred to in Ms May's and Ms Guinea's statements as giving rise to a suspected contravention are expressed broadly and in hindsight, in circumstances where no contemporaneous evidence such as file notes have been provided. In an ideal world Ms May and Ms Guinea would have given evidence, using direct speech, of exactly what members had told them and would have annexed contemporaneous file notes of those conversations. However, the absence of that kind of evidence, in circumstances where pursuant to s 163 of the Industrial Relations Act 1996 (NSW) I am not bound by the rules of evidence, does not lead me to doubt the accounts given by both women of what they were told by members. Both Ms May and Ms Guinea presented as very honest witnesses and it is clear that they tried very hard to work collaboratively with the representatives of the MNCLHD to address concerns raised by the Association's members. Their accounts of the information given to them by members was not shaken in cross examination. Further, the file notes that were taken by Ms Connett support, and do not detract from, Ms May's and Ms Guinea's accounts of the suspicions they held and the reasons for them.
The Association submitted, further, or in the alternative, that once entry had occurred, as it did in this case, "any dispute as to whether a permit holder reasonably suspected that a contravention had occurred was resolved" and that a "dispute as to compliance or otherwise with a requirement of a permit under ss 118(1) or 120(2) does not re-enliven a dispute as to the basis of the initial entry, to which there was no opposition". In making this submission the Association relied on the First Enco Precast Decision at [90]-[93], Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] ICQ 15 (Second Enco Precast Decision) at [50] - [61] and my decision in Primo at [28].
I disagree with this submission. Before making an order pursuant to s 142(3) I must satisfy myself that there is a current dispute about the exercise or future exercise by a WHS entry permit holder of a right of entry under the WHS Act. In Enco Precast and in Primo the dispute was about the ability of the WHS entry permit holders to physically enter the workplace. As they were ultimately allowed entry by the PCBU, it was held in those two cases that there was no longer a current dispute about entry to the workplace.
In the present matter there is no dispute about physical entry to the workplace. That occurred on 8 and 9 November 2022. The dispute concerns the inspection and copying of documents. I do not consider that allowing physical entry to the workplace operates as some kind of estoppel, preventing the PCBU from requiring the WHS entry permit holders to prove that they reasonably suspected, before entering the workplace, that a contravention of the WHS Act had occurred or was occurring, in order to establish an entitlement under either s 118(1)(d) or s 120 to inspect and copy certain documents. Neither Enco Precast nor Primo determined that once entry had occurred, any dispute, regarding the WHS entry permit holders rights, including as to whether a permit holder reasonably suspected a contravention had occurred, was resolved. Those decision determined only that a dispute about physical entry to the workplace had been resolved.
The Association in oral closing submissions faintly submitted that the MNCLHD had waived any right to dispute Ms May's and Ms Guinea's suspicion in circumstances where the representatives of MNCLHD had initially agreed, without limitation, to provide the documents requested and had in fact provided some of the requested documents. In response counsel for the MNCLHD argued: 1. there can be no estoppel in the face of a statute if that runs counter to the social policy of the statute: Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 at [55] - [56] and that principle applied by analogy to the alleged waiver in this case; 2. there is as a matter of fact a dispute about the remaining categories of documents and that dispute is not made hypothetical (as it was in Enco Precast and Primo as the permit holders had been granted entry), by the fact that some documents in some form, have been produced; 3. there is no free-standing concept of waiver under Australia law: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 (Gummow, Hayne and Kiefel JJ) at [50] - [55]; and 4. in any event there is no inconsistency between what was done and an assertion by MNCLHD of a continuing dispute - Ms Edwards, who is a nurse not a lawyer, raised concerns about the right of entry and the relevance of the documents to a suspected contravention on 8 November 2022 and concerns were again raised a few weeks later, on 5 December 2023.
There is some force in these submissions.
I do not consider it would be consistent with the object of the WHS Act (which I discussed at [120] - [121] of Primo, but need not repeat here) and the need to construe provisions relating to the entry on to worksites "with an eye to common sense, so that they can be implemented in a clear way on a day-to-day basis at work sites" as recommended by the Full Court in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470, for PCBU's to be precluded from properly raising concerns regarding a WHS entry permit holder's right to do the things listed in ss 118(1) and 120(2), including by disputing the reasonableness of the WHS permit holder's suspicion, just because they have, in good faith and despite their concerns, allowed entry to the workplace and/or granted access to some of the documents sought. To take such an approach would be to discourage PCBU's and other persons from whom documents are sought pursuant to s 120(2)(b), working cooperatively with WHS entry permit holders by providing some access to the workplace and to documents, lest they be precluded from subsequently and legitimately, disputing an entry permit holder's right to do one or more of the things listed in s118(1) or s 120(2).
In summary, while I consider the MNCLHD is entitled to put the Association to proof in respect of whether the WHS entry permit holders reasonably suspected before entering the workplace that a contravention of the WHS Act that relates to, or affects, relevant workers has occurred or was occurring and that they were entering the workplace for the purpose of inquiring into that suspected contravention, in the present matter the Association has satisfied me to the requisite standard that Ms May and Ms Guinea did hold the required reasonable suspicion and were entering the workplace for the authorised purpose.

[6]

Second Reason: The Notices did not meet the relevant requirements

It is not in dispute that if a document contains an 'employee record' - which the MNCLHD contends is the case in respect of all documents sought except one - the Association's ability to obtain a copy of that document must be found in s 120(2)(a) and not s 118(1)(d) of the WHS Act. However, the MNCLHD contends that the Notices did not meet the requirements of s 120(3) and (4) and reg 29 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) and hence it is not obliged to comply with the Notices to the extent they seek employee records.
The MNCLHD's argument runs as follows: 1. pursuant to s 4 of the WHS Act 'employee record', has the same meaning as it has in the Privacy Act 1988 (Cth) (Privacy Act); 2. section 6 of the Privacy Act defines 'employee record' as follows: "employee record", in relation to an employee, means a record of personal information relating to the employment of the employee. Examples of personal information relating to the employment of the employee are health information about the employee and personal information about all or any of the following: (a) the engagement, training, disciplining or resignation of the employee; (b) the termination of the employment of the employee; (c) the terms and conditions of employment of the employee; (d) the employee's personal and emergency contact details; (e) the employee's performance or conduct; (f) the employee's hours of employment; (g) the employee's salary or wages; (h) the employee's membership of a professional or trade association; (i) the employee's trade union membership; (j) the employee's recreation, long service, sick, personal, maternity, paternity or other leave; (k) the employee's taxation, banking or superannuation affairs. 1. the MNCLHD is a 'public sector agency' for the purposes of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act): s 3(1) of the PPIP Act, by reason of being an 'auditable entity' within the meaning of the Government Sector Audit Act 1983 (NSW); 2. as a public sector agency, the MNCLHD is subject to the information protection principles in Part 2, Div 1 of the PPIP Act, (and is not subject to the Privacy Act), including s 18 which contains a general restriction on a public sector agency that holds 'personal information' from disclosing that information to someone other than the individual to whom the information relates, except for specified purposes; 3. 'personal information' "means information (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion": PPIP Act, s 4, and so includes 'employee records'; 4. section 25 of the PPIP Act provides: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if - (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998). 1. pursuant to s 118(2), the relevant PCBU is not required under s 118 (1)(d) of the WHS Act to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of Commonwealth or a law of the State, thus an WHS entry permit holder is not entitled to inspect and copy 'employee records' of a public sector agency pursuant s 118(1)(d) as it would contravene s 18 of the PPIP Act and s 118(1)(d) of the WHS Act does not authorise or otherwise permit disclosure within the meaning of s 25 of the PPIP Act. This is confirmed by Note 1 to s 118 [4] and the Explanatory Memorandum of the model WHS Act, which refers to the right in s 118(1)(d) applying to documents "other than an employee record" [5] ; 2. however, s 120(2)(a) expressly permits a WHS entry permit holder who is entitled under s 117 to enter a workplace to inquire into a suspected contravention, to inspect or make copies of employee records that are directly relevant to a suspected contravention, and so, pursuant to s 25 of the PPIP Act, a public sector agency is permitted not to comply with s 18 and the other specified provisions of the PPIP Act, in relation to such records; 3. it is an express condition of inspecting or making copies of documents under s 120 that: "Before doing so, the WHS entry permit holder must give notice of the proposed entry to the person from whom the documents are requested [if that is not the relevant PCBU] and the relevant [PCBU]": WHS Act s 120(3); 4. that notice "must comply with the regulations": WHS Act s 120(4); 5. it follows that, if a notice was not given before the relevant entry that complied with the regulations, there was no entitlement to inspect employee records under s 120, and the Commission cannot make an order under s 142(3)(e) that those records be provided, since that would confer upon the WHS entry permit holder rights additional to their rights exercisable under Part 7 of the WHS Act, contrary to s 142(5); 6. regulations 29 and 29 of the WHS Regulations provide as follows: 28 Additional requirements - entry under Part 7, Division 2 A notice of entry under section 119 of the Act in relation to an entry under the Act, Part 7, Division 2 must also include the following - (a) so far as is practicable, the particulars of the suspected contravention to which the notice relates, (b) a declaration stating - (i) that the union is entitled to represent the industrial interests of a worker who carries out work at the workplace entered and is a member, or eligible to be a member, of that union, and (ii) the provision in the union's rules that entitles the union to represent the industrial interests of that worker, and (iii) that the suspected contravention relates to, or affects, that worker. Note - Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker. 29 Additional requirements - entry under section 120 A notice of entry under section 120 of the Act in relation to an entry under that section must also include the following - (a) so far as is practicable, the particulars of the suspected contravention to which the notice relates, (b) a description of the employee records and other documents, or of the classes of records and documents, directly relevant to the suspected contravention, that are proposed to be inspected, (c) a declaration stating - (i) that the union is entitled to represent the industrial interests of a worker who is a member, or eligible to be a member, of that union, and (ii) the provision in the union's rules that entitles the union to represent the industrial interests of that worker, and (iii) that the suspected contravention relates to, or affects, that worker, and (iv) that the records and documents proposed to be inspected relate to that contravention. Note - Section 130 of the Act provides that a WHS entry permit holder is not required to disclose the name of any worker to the person conducting the business or undertaking, and may do so only with the consent of the worker. 1. "particulars" in the context of regs 28 and 29 means the facts, matters and circumstances said to give rise to the suspected contravention: Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065; 280 IR 47 (Qantas) at [55] (Flick J) (in the context of s 518 of the Fair Work Act 2009 (Cth) (Fair Work Act); 2. the evident purpose of the requirement to provide particulars is to enable the recipients of the notice to ascertain whether the right sought to be exercised is a lawful exercise of the statutory power: Qantas at [55] - [58]; Primo at [23] and [174]. In the context of s 120, and the circumstances of this matter, this means that sufficient particulars of the suspected contraventions were needed to enable the MNCLHD to assess both whether there was a reasonable basis for suspecting a contravention of the WHS Act, and whether the documents sought to be inspected were directly relevant to the suspected contravention - these being the two relevant preconditions for the power to inspect or make copies of documents under s 120(2)(a); 3. the information set out in the Notices was inadequate to meet these requirements. No facts, matters and circumstances were provided of what was said to constitute or give rise to 'occupational violence', 'work overload', 'poor support' or 'remote and isolated work'. Consequently, it was not possible for the MNCLHD to assess in any meaningful way whether the WHS entry permit holders had or could have a reasonable suspicion of a contravention of s 19 or whether the documents sought in the Notice were directly relevant to any suspected contravention and this was borne out by the evidence of Ms Jones and Ms Edwards to the effect that they did not understand what the suspected contravention was; 4. it could not be said that it was not reasonably practicable for more detail to be provided in the Notices, noting that the evidence of Ms May and Ms Guinea was that they had quite a deal of detail about the suspected contravention before they issued the Notices; and 5. the Notices did not include a declaration to the effect that the records and documents proposed to be inspected relate to the suspected contravention, as required by sub-reg 29(c)(iv).
The Association, in my view quite correctly, did not take issue with the propositions outlined in (1) - (8) of the preceding paragraph. I agree with each of those propositions.
Instead, the contest between the parties was in respect of two matters. First, whether a defect in a Notice given under s 120(3) vitiated the right of entry of a WHS entry permit holder under s 117 or the exercise of powers by the permit holder. Second, whether the Notices given in this case were in fact defective. For the reasons developed below I have concluded that a failure to meet the requirements of ss 120(3) and 120(4) and reg 29, while not vitiating the right of entry under s 117, will prevent a WHS entry permit holder from entering a workplace for the purpose of inspecting or making copies of documents specified in s 120(2); and the Notices given in this case were defective for the purposes of s 120.

[7]

What is the effect of a failure to comply with s 120(3) and (4) and reg 29?

The Association submitted that the failure of a notice to comply with regs 27 or 28 of the WHS Regulations does not vitiate the right of entry of a permit holder under s 117 or the exercise of powers by the permit holder, relying on the decision of the Full Court in Ramsay v Menso [2018] FCAFC 55; 260 FCR 506 (Ramsey) (Dowsett, Collier and O'Callighan JJ), and so logically, failure to comply with reg 29 will not vitiate the right of entry, or prevent the exercise of powers under s 120(2).
In Ramsey the WHS entry permit holders sought declarations that the first respondent had breached ss 501 or 502 of the Fair Work Act by refusing entry to the permit holders on three occasions in circumstances where they suspected that contraventions of the Work Health and Safety Act 2011 (Qld) (WHS Act Qld) (which is relevantly the same as the WHS Act) were occurring. (Section 494 of the Fair Work Act provides that an official of a registered organisation, must not exercise a State or Territory occupational health and safety right unless the official is a permit holder under the Fair Work Act and ss 501 and 502 provides, that a person must not refuse or unduly delay entry on to premises by a permit holder who is entitled to enter the premises in accordance with Part 3-4, or intentionally hinder or obstruct a permit holder exercising rights in accordance with that Part, respectively. The Fair Work Act and the WHS Act are intended to operate interactively in relation to rights of entry: Ramsay v Sunbuild Pty Ltd [2014] FCA 54 at [9]- [71]; Ramsey at [23]).
The WHS entry permit holders failed at first instance, with the primary judge finding that the notice of entry they had prepared, as required by s 119 of the WHS Act Qld, was not valid because it did not state the full name of the entry permit holder, as required pursuant to reg 27 of the Work Health and Safety Regulations 2011 (Qld) and so the respondent was not obliged to allow entry. The Full Court overturned that decision, finding that a notice of entry required by s 119 of the WHS Act Qld need not be completed or provided by the permit holder to anyone prior to the exercise of the right of entry.
In arriving at this view the Full Court had regard to the express words of ss 117 and 119 and their legislative purpose. It is helpful to set out exactly why the Full Court determined that a failure to properly complete a s 119 notice does not vitiate the WHS entry permit holder's right of entry: 31. The respondents submit that ss 117 and 119 should be read together. This is correct. However, s 119(1) clearly states that the permit holder must give a notice to the occupier as soon as reasonably practicable after entry. We reject the submission that a notice of entry must be completed (and provided) prior to, or at the time of, entry on to a site. The legislation simply does not support the interpretation advanced by the respondents and favoured by his Honour. As a practical matter, a notice of entry is not likely to be a simple document. It is to contain a description of the suspected contraventions as well as other matters. Such a document could not usually be produced in two or three minutes. Given the requirement that it be given to the relevant recipient as soon as is reasonably practicable after entry, one might infer that an entrant in good faith would prepare such document in advance of entry. … 34. A key finding of the primary Judge in this case was that the notice of entry which had been completed by the appellants prior to seeking entry on to the premises was invalid because it mis-stated their names (namely by omission of their respective middle names, and reference to the first name of the second appellant as "Tony" rather than "Anthony"). Critically, his Honour went on to find that because the notice of entry was invalid, the invalidity vitiated the right of entry of the appellants, and for that reason would have entitled Ms Menso to refuse them entry on to the site. 35. Regulations 27 and 28 of the WHS Regulations state that a notice of entry must comply with the requirements set out therein. Regulation 27(b)(i) requires the notice of entry to include the full name of the WHS entry permit holder. 36. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 McHugh, Gummow, Kirby and Hayne JJ said: 91. An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition … 37. For present purposes, namely determining whether there has been a contravention of the FW Act, the question is not as to the intention of the Queensland Parliament in enacting the WHS Act, but that of the Federal Parliament in enacting s 501 of the FW Act. However, the proper construction of the WHS Act also depends upon the application of the decision in Project Blue Sky. 38. We are satisfied that a notice of entry which does not strictly comply with reg 27(b)(i) (concerning the inclusion of the full name of the WHS entry permit holder) does not vitiate the right of entry of a permit holder under s 117 of the WHS Act, for the following reasons. 39. First, as the Full Court recently observed in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89 at [15], notwithstanding the closely-regulated environment of industrial and employment legislation, provisions related to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament, practically and with an eye to common sense, so that they can be implemented in a clear way on a day-to-day basis at work sites. A common sense interpretation of "full name" in the context of union officials seeking to access a building site would, for example, encompass "Tony Stott" as well as "Anthony Stott" to identify the second appellant, and "Andrew Ramsay" to identify the first appellant. 40. Second, we have already observed that the permit holder is required to provide the notice of entry under ss 117 and 119 as soon as reasonably practicable after entry has occurred. In view of this timing, it is unlikely that Parliament would have intended that a lack of strict compliance in a notice given after the entry was effected would determine whether the prior entry was valid or invalid. 41. Third, the objects of the WHS Act set out in sub-ss 3(1)(a) and (2) of the statute indicate that the overriding focus in the statute is on the prevention of risks to workers rather than the content of the notice of entry. These objects are: (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by- (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and … (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from particular types of substances or plant as is reasonably practicable. 42. Fourth, we note that s 125 of the WHS Act requires that the permit holder, at all times that he or she is at a workplace under a right of entry under Divs 2 or 3 of the WHS Act, have his or her WHS entry permit and photographic identification available for inspection by any person on request. It follows that in exercising the right of entry under ss 117 and 119 the permit holder must have the permit and photographic identification with him or her, but not necessarily, the notice of entry. Provided the reasonable suspicion required by s 117 exists, it is the permit and the photographic identification which ensure that the occupier of the site can be satisfied that the person exercising the right of entry is both empowered to do so, and is the person described in the permit. To that extent the logical purpose of the provision of a notice after entry is to create a record of the entry, to inform the occupier of the premises of the nature of the reasonable suspicion held, and to demonstrate the entitlement, under the relevant organisation's rules, to represent the relevant workers. 43. In this respect we do not agree with the analogy drawn by the primary Judge between notices of entry under the WHS Act, and search warrants executed by police officers. While entry on to premises of a third party is a serious matter, and regulated by relevant legislation both in respect of notices of entry and search warrants, the right of a permit holder to enter premises pursuant to s 117 is free standing where the criteria prescribed by ss 117 and 119 are satisfied. This can be contrasted with the usual requirement that applications for search warrants must be made to judicial officers (for example in accordance with s 150 of the Police Powers and Responsibilities Act 2000 (Qld) or pursuant to s 3E of the Crimes Act 1914 (Cth)). 44. Errors, misdescriptions or material defects in a search warrant may go to its validity, depending on the terms of the legislation pursuant to which it is issued. (See for example the discussions in New South Wales v Corbett [2007] HCA 32 at [29], [77] and Caratti v Commissioner of the Australian Federal Police [2017] FCAFC 177 at [34]). Nonetheless, as the Full Court recently pointed out in Caratti, in connection with search warrants: [34] … when it comes to mismatches between the information and the search warrant, that feature must not be approached with undue technicality or any requirement for excessive precision. Practical considerations must always be kept steadily in mind … 45. This observation may readily be applied to the omission of Mr Ramsay's middle names, and the identification by Mr Stott as "Tony Stott" rather than "Anthony Stott", on the notices of entry. While the modes of self-identification by Mr Ramsay and Mr Stott as permit holders on the notices were defective, such defects did not go to the validity of the notices. 46. Finally, any abuse by a permit holder of the requirement that he or she include his or her full name on the notice of entry by, for example, use of a false name or complete omission of a name, may contravene s 500 of the FW Act, being improper conduct. Section 500 is a civil penalty provision.
Notably, the Full Court in Ramsey did not consider what effect a defective notice would have on the permit holders' rights under s 118. The dispute in Ramsey concerned the physical entry to the workplace pursuant to the right of entry bestowed by s 117 and not what the entry holders might do upon entry.
Contrary to the Association's submissions, an application of the reasoning of the Full Court in Ramsey to the requirements of s 120 leads to the conclusion that a substantive or material defect in a s 120(3) notice, or a failure to provide a substantively compliant notice before the proposed entry, while not vitiating the right of entry of a permit holder under s 117, will result in the permit holder not being permitted to enter the workplace for the purpose of inspecting, or making copies of the documents listed in s 120(2).
While provisions related to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament, practically and with an eye to common sense, so that they can be implemented in a clear way on a day-to-day basis at work sites, this is not a licence to ignore what the legislation requires. The legislature has expressed the notice requirements of s 119 and 120 quite differently, in four distinct ways: first, in the way it has expressed the requirement that the notice be compliant with the regulations; second, as to the timing of the provision of the notice; third, as to what is required under the regulations; and fourth, because s 119 allows an exception to the notice requirement in certain circumstances, whereas no exception is allowed under s 120.
With respect to the first distinction, section 119 provides, in the chapeau to s 119(1), that the WHS entry permit holder "must, as soon as is reasonably practicable after entering a workplace under this Division, give notice in accordance with the regulations". Section 120 on the other hand has a standalone requirement in s 120(4) which stipulates that: "The notice [required by sub-s 120(3)] must comply with the regulations."
I consider that the difference in layout of ss 119 and 120 and the use of the phrase "must comply" in s 120(4), compared with the softer phrase "in accordance with" in s 119(1), supports the view, in conjunction with the matters discussed below, that the legislature intended that a failure to provide a compliant notice before entry would prevent the WHS entry permit holder from exercising the powers set out in s 120(2).
Second, and most importantly, s 120(3), unlike s 119(1), requires that notice of the proposed entry must be given to the person from whom the documents are required and the relevant PCBU, before entering the workplace for the purpose of inspecting, or making copies of documents of the kind listed in s 120(2). The Full Court in Ramsey considered that the fact that a notice under s 119 was to be give as soon as practicable after entry has occurred, meant that it was "unlikely that Parliament would have intended that a lack of strict compliance in a notice given after the entry was effected would determine whether the prior entry was valid or invalid." The implicit corollary of this view is that where the Parliament requires a notice to be given before entry, it intended that a lack of strict compliance with this requirement would make any subsequent entry (noting that the purpose of an entry under s 120 is to inspect or make copies of documents) invalid - although to be clear, it would not vitiate the anterior right of entry.
Such an interpretation is consistent with the generally cautious approach of Courts to the construction of legislation which diminishes the common law rights of occupiers to determine who may enter and remain upon their property, as to which see the remarks of Flick J in Qantas at [29] - [30].
That the legislature intended strict compliance with s 120 and reg 29 is supported by the mere existence of s 120(2)(a). It would have been a simple thing for the legislature to expressly permit a WHS entry permit holder to inspect and make copies of 'employee records' as part of s 118(1)(d) (thereby overriding the restrictions of the PPIP Act), however, it did not. Instead, it imposed a regime whereby a notice containing additional information than that required under s 119, is to be given to the person from whom the documents are requested and the relevant PCBU (if they are not one and the same), before entering the workplace to inspect and copy the documents. Further, pursuant to s 120(5), the notice must be given during usual working hours at the workplace at least 24 hours, but not more than 14 days, before the entry.
Which brings me to the third difference. A notice given under s 119 must comply with reg 28. A notice given under s 120 must comply with reg 29. Regulation 28, unlike reg 29, does not require a description of the documents or the classes of documents, that are proposed to be inspected pursuant to s 118(1)(d). Regulation 29 requires such a description and a declaration stating that the records and documents proposed to be inspected relate to the suspected contravention.
Lastly, s 119(2) provides that a notice is not required to be given if to give the notice would either defeat the purpose of the entry to the workplace or would unreasonably delay the WHS entry permit holder in an urgent case. No such exception is permitted under s 120.
These four matters all point to the legislature being careful to balance the common law rights of the occupiers and owners of the documents sought and the statutory right to privacy of employees, with the objects of the WHS Act. That balance requires a WHS entry permit holder to properly observe certain prerequisites before they will be given the right to inspect and copy documents owned by others (including persons other than the relevant PCBU) and which contains sensitive personal and/or proprietary information.
At the risk of repetition, a failure to meet the requirements of ss 120(3) and 120(4) and reg 29 will not vitiate the WHS entry permit holder's entitlement under s 117 to enter a workplace to inquire into a suspected contravention of the Act. As I have discussed above, that entitlement will exist whenever the entry permit holder reasonably suspects that a contravention has occurred or is occurring. Indeed s120(1) provides in terms, that that entitlement must exist in order for the balance of the section, including its mandatory requirements in ss 120(3)-(5), to apply. However, a failure to meet those requirements, including reg 29, will prevent the WHS entry permit holder from entering the workplace for the purpose of inspecting or making copies of documents of the kind described in s 120(2).
Whether a notice has in fact failed to meet the requirements of ss 120(3), 120(4) and 120(5) and reg 29 will be a question of fact in each case and, as the Full Court said in Ramsey at [44], practical considerations must be kept steadily in mind when determining whether any defect invalidates the notice.
There remains a question as to whether a failure to provide a compliant notice pursuant to s 119 and reg 28 will prevent the WHS entry permit holder from requiring the relevant PCBU to allow them to inspect, and make copies of, documents pursuant to s 118(1)(d).
The only express qualification in s 118 on the rights bestowed on the WHS entry permit holder by that section is that the relevant PCBU is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of documents if to do so would contravene a law of the Commonwealth or the law of State. No mention is made in s 118 of the notice of entry. This contrasts with s 120 which expressly requires a notice of the proposed entry to be given before entering the workplace for the purpose of inspecting or making copies of documents described in s 120(2). The difference between s 118 and s 120 together with the reasoning in Ramsey incline me to the view that a failure to comply with the notice requirements of s 119 will not, per se, prevent a WHS entry permit holder from requiring the relevant PCBU to allow them to inspect, and make copies of, any document that is directly relevant to the suspected contravention that is kept at the workplace or is accessible from a computer that is kept at the workplace. The lack of adequate particulars may however cause disputes to arise in respect of whether the documents to which access is sought are directly relevant to the suspected contravention.

[8]

Did the Notices fail to comply with s 120(3) and (4) and reg 29?

The MNCLHD contended that the Notices did not comply with reg 29, and hence ss 120(3) and 120(4), because they failed to include, so far as reasonably practicable, the particulars of the suspected contravention(s); and failed to include a declaration to the effect that the records and documents proposed to be inspected relate to the suspected contravention, as required by subreg 29(c)(iv).
The lack of a declaration as required by subreg 29(c)(iv) was a matter raised by me during the hearing but was embraced by the respondent in oral closing submissions. It is not in dispute that the Notices did not include the required declaration. However, the Association argued this failure should not result in the WHS entry permit holders not being permitted to inspect and obtain copies of the documents sought because: 1. a failure to include words to the effect required by subreg 29(c)(iv) should not make the employer "immune from enquiry into a risk to health and safety which is reasonably suspected"; 2. the template Notice of Entry published by SafeWork Australia, which was tendered in evidence, and which I accept formed the basis for the Notice of Entry used by Ms May and Ms Guinea, did not include such a declaration; and 3. Schedule A to the Notices stated: "The following requested documents relate to Coffs Harbour Acute Mental Health Inpatient Unit …", while Schedule B stated: "The following requested documents relate to Coffs Harbour Community Mental Health (CMH):…".
I do not consider that any of these matters remedy the failure of the Notices to include a declaration that the records and documents proposed to be inspected relate to the suspected contravention.
The failure of the Notices to include the required declaration did not, as the Association submitted, make the MNCLHD "immune from enquiry into a risk to health and safety which is reasonably suspected." As I have already explained a non-compliant notice will not invalid the right of entry per se and may not prevent documents being inspected pursuant to s 118(1)(d), however it will prevent inspection and copying of documents pursuant to s120(2). The subsequent delivery of a notice which complies with ss 120(3) and 120(4) and reg 29 would enable any inquiry into the suspected contravention to include the inspection and copying of documents pursuant to s 120(2).
It is unfortunate that the SafeWork Australia template contains an error. As I explain below, the guidance material published by SafeWork Australia which was tendered in evidence, is not helpful and in some respects is misleading. It was not explained in evidence where the SafeWork guidance material, which apparently the WHS entry permit holders relied upon, was obtained or when and how it was created. Hopefully it has or will be, improved.
The statements in the Schedules to the Notices do not meet the requirements of subreg 29(c)(iv). A declaration is a formal and express statement or announcement. It is not something that can be inferred or implied. The legislature has stipulated that a declaration be made that the records and documents proposed to be inspected relate to the suspected contravention. Such declarations were not made in this case.
For the reasons outlined at [127] - [136] above, I consider that the failure to comply with subreg 29(c)(iv) means that the WHS entry permit holders failed to comply with ss 120(3) and 120(4), with the result that it cannot inspect and copy documents pursuant to s 120(2), (without first serving a compliant notice) and accordingly the Commission cannot made an order that it be allowed to do so, given the limitation imposed by s 145(5).
The absence of the declaration required by subreg 29(c)(iv) is sufficient for me to uphold the second of the MNCLHD's reasons why the Commission would not make orders that it produce copies of documents containing employee records, or that such documents be produced without the employee records redacted, such that I do not need to consider whether the Notices were also defective for failing to particularise, as far as practicable, the suspected contravention(s). Nevertheless, in the event I am wrong as to the consequences of failing to include the required declaration, I also find that the Notices were not sufficiently particularised, as required by subreg 29(a).
I made obiter remarks regarding the sufficiently of particulars required pursuant to s 119 and reg 28 in Primo at [171] - [183]. Those observations, which I shall not repeat here, apply equally to a consideration of what particulars are required to satisfy s 120 and reg 29, with the following additional observation.
As has already been observed, s 119 requires that notice to be given as soon as is reasonably practicable after entering a workplace, whereas s 120 requires that notice be given beforehand. Consequently, the remarks of Flick J in Qantas at [54] - [55] as to what is required to provide sufficient particulars apply a fortiori to a notice given under s 120(3), as Qantas also involved a notice which was required to be given before entry.
As I stated at [174] of Primo: "… the purpose of a notice of entry given pursuant to s 119 is to inform the occupier of the nature of the reasonable suspicion held, as, to use the words of Flick J, this then enables an occupier or employer whose common law rights are being displaced by the statutory right of entry to make an informed decision as to whether the statutory right is being lawfully exercised or whether the permit holder is acting in excess of the right conferred. I would add however, that another purpose of the notice of entry, consistent with the object of the WHS Act, must surely be to inform the PCBU of the nature of the suspected contravention so that remedial steps can be taken as soon as possible to remove or eliminate any risk to workers' health and safety. To that end, and consistent with the wording of reg 28 of WHS Regulation, the WHS entry permit holder should strive to provide as much particularisation of the suspected contravention as is practicable."
The MNCLHD submitted in this case that: "The Notices contained no more than high-level assertions about the general nature of the suspected contravention. No facts, matters and circumstances were provided of what was said to constitute or give rise to 'occupational violence', 'work overload', 'poor support' or 'remote and isolated work'. Those phrases are inherently and intractably vague: 'poor support', for example, could mean almost anything. Nothing was said about the suspected sources of violence, or work overload. No dates were provided, or locations, or examples of incidents. It was not possible for the District to assess in any meaningful way whether the Officials had or could have a reasonable suspicion of a contravention of s 19 or whether the documents sought in the Notice were directly relevant to any suspected contravention. This was borne out by the evidence of Ms Jones and Ms Edwards to the effect that they did not understand what the suspected contravention was." [6]
While I consider that the particulars provided in the Notices were an improvement upon the 'tick and flick' notice that was given in Primo, I agree that the particulars provided were not sufficient to meet the requirement of subreg 29(a). While I do not consider it was necessary to provide, dates, locations or examples of incidents (noting that an incident is not necessary to prove a contravention of s 19), I do consider it was necessary, for the reasons I discussed at [89] and [91] and in the circumstances of this case, for the Notice to particularise not only the nature of the suspected risk to health and safety (which was done), but also the reasonably practicable measures which the WHS entry permit holders suspected were not being taken to eliminate or reduce the risk, or at least, the suspected 'source' of the risk.
The evidence established that both Ms May and Ms Guinea were aware, from their conversations with members, that staff at the CHMAHU and CHCMH asserted that they were at risk of being physically injured by violent and aggressive patients and were at risk of psychological injury for the reasons set out in paragraph [95] above. Had they set out those reasons in terms not dissimilar to those I have used in paragraph [95], that would have satisfied the requirements of subreg 29(a), as the reasonably practicable measures which the WHS entry permit holders suspected were not being taken to eliminate or reduce the risk would be implicit, as I explained at paragraph [96].
The Association has not established that it was not practicable for this level of particularisation to be provided. As the MNCHD submitted the Notices were not prepared in circumstances of urgency, as Ms May and Ms Guinea had been speaking with members about their concerns for months.
I accept that the WHS entry permit holders likely had regard to the guidance material published by SafeWork Australia when preparing the Notices and based on that material they considered that they had provided sufficient particularisation. I can understand why they came to that view. In the material a number of scenarios are given followed by some "suggested information for the details of the suspected contravention to which the notices relates." In my opinion the "suggested information" is inadequate in each case.
For instance, scenario 1 reads as follows: A worker from ZZZ Engineering phones the union and informs you that she is aware that there is no separation of pedestrians and forklifts at ZZZ's loading bay and suspected many of the forklifts are driven by unlicensed drivers an[d] may not be up to safety standards.
The suggested wording in relation to the details of the suspected contravention reads: I have reason to suspect there are unsafe work practices within the loading bay area of the factory.
While the suggested wording identifies the suspected convention at a high level, to the extent the wording is intended to meet the requirement of reg 28 (a) or reg 29(a) to provide particulars of the suspected contravention, so as is practicable, it fails. It does not even identify that the source of the contravention is the operation of forklifts. How is the PCBU to be satisfied, from this description, that the WHS entry permit holders a reasonable suspicion and is therefore entitled to enter the workplace and how might it go about facilitating the prompt inquiry into and remediation of, the alleged "unsafe work practices"?
It would be entirely practicable in the above scenario to give the following particulars of the suspected contravention: I have reason to suspect there are unsafe work practices within the loading bay area of the factory due to: ● no or inadequate separation of pedestrians and forklifts; ● the driving of forklifts by unlicenced drivers; and ● forklifts not being compliant with applicable safety standards [ideally further particularisation of this allegation would also be provided].
The fact that the WHS entry permit holders in this case may have had regard to the SafeWork Australia guidance material is not a basis for me to find that it was not practicable for them to provide the particulars of the kind set out in paragraph [95] above. In any event this was not an argument put by the Association.
There is one final matter to be addressed in respect of the particularisation of the suspected contraventions. The Association submitted that the details of the suspected contraventions that were provided in the Notices need to be read in light of the earlier correspondence and meetings between the Association and representatives of MNCLHD and the fact that they related to an acute mental health facility. In other words, the Association submitted that particulars were sufficient because the MNCLHD understood, by virtue of earlier communications and/or because the suspected contravention concerned "an acute mental health facility at which there have [allegedly] been a series of assaults on staff by patients", what was meant by the words which were used in the Notices. I reject this submission for two reasons.
First, the evidence established that Ms Edwards, who, with Mr Noble, was the representative of the MNCLHD responding to the Notices on the day of entry, did not understand what the suspected contraventions were. I accept that Ms Edwards genuinely did not understand, prior to 8 November 2022, what all of the suspected contraventions were.
Similarly, Ms Jones gave evidence, which was not shaken in cross examination, despite her having been privy to the earlier correspondence with the Association, that she did not understand what the suspected contraventions were or how the documents requested in the Notices related to them.
The lack of awareness on the part of Ms Edwards and Ms Jones leads to the second reason why I consider the 'shorthand' description of the suspected contravention to be non-compliant with reg 29(a).
Sections 120(3) and 120(4) stipulate that the WHS entry permit holder must give notice of the proposed entry at least 24 hours, but not more than 14 days, before entering the workplace for the purpose of inspecting or making copies of documents of the kind described in s 120(2). This regime does not permit the WHS entry permit holder to expand or elaborate upon the particulars during the entry, as this would be too late to qualify as prior notice. It is clearly the intention of the legislature, as I have already discussed, to require a WHS entry permit holder seeking to invoke the rights in s 120(2), to provide as much detail in the Notice as is practicable, to enable the recipient of the Notice to determine, from the information given in the Notice, whether the statutory right is being lawfully exercised, whether the documents sought to be inspected are directly relevant to the suspected contravention and, upon being so satisfied, to allow it sufficient time to get the requested documents organised for inspection and copying on the nominated date of entry. While it may be possible to make reference in a notice of entry to other material which contains further particularisation of the suspected contravention, the WHS entry permit holder should not assume that persons from whom the documents are requested and the relevant PCBU, being the proper recipients of the notice, are familiar with such material where it is not expressly referenced in the notice.
Thus, in the present matter, I do not accept that the Notices were compliant with subreg 29(a) simply because of the existence of earlier correspondence and the fact that meetings had been held regarding the Association's concerns, where that correspondence and those meetings had not been referenced in the Notice, much less because of unreferenced assertions that assaults by patients on staff had alleged occurred; nor do I accept that the further oral details of the suspected contraventions that were provided by Ms May during the entry on 7 and 8 November 2023 were sufficient to meet the requirements of subreg 29(a), even if such elaboration had properly particularised the suspected contraventions, which it did not.
Despite what I have said above, it is important that I repeat the caution I gave in Primo at [183], namely that a PCBU should generally be slow to consider, given the object of the WHS Act and the important purpose for which WHS entry permit holders are permitted to enter a workplace, that a WHS entry permit holder does not have a reasonable suspicion of a contravention, or that the Notice does not comply with reg 29, simply because the particulars of the convention are not as detailed as it would like. Even under s 120 and reg 29, a WHS entry permit holder is only obliged to provide particulars of the suspected contravention "so far as is practicable". What is practicable will vary in each and every case. In this case the WHS entry permit holders had considerable detail as to why they suspected the MNCLHD were failing to ensure, so far as was reasonably practicable, the health and safety of workers, however they failed to provide that detail in the Notices.

[11]

Fifth Reason: It would contravene a law of NSW to provide information in the documents

I have already discussed above in relation to the MNCLHD's second reason why the Commission should not make the orders sought by the Association, the fact that the inspection and copying of "employee records" pursuant to s 118(1)(d) would contravene s 18(1) of the PPIP Act, but is permitted under s 120(2), provided a compliant notice of entry has been provided prior to the entry of the workplace for that purpose. As I have determined that the Notices were not compliant with ss 120(3) and 120(4), the Association is not entitled to documents comprising employee records.
The MNCLHD also submits that, by reason of s 118(2), it not required under s 118(1)(d) to allow the WHS entry permit holders to inspect or make copies of a document containing "health information" within the meaning of s 6 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) as if it did so it would contravene Item 11 in Schedule 1 of the HRIP Act. Section 6 of the HRIP Act defines 'heath information' as follows: In this Act, health information means - (a) personal information that is information or an opinion about - (i) the physical or mental health or a disability (at any time) of an individual, or (ii) an individual's express wishes about the future provision of health services to him or her, or (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service, or (c) other personal information about an individual collected in connection with the donation, or intended donation, of an individual's body parts, organs or body substances, or (d) other personal information that is genetic information about an individual arising from a health service provided to the individual in a form that is or could be predictive of the health (at any time) of the individual or of a genetic relative of the individual, or (e) healthcare identifiers, but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act.
Item 11 of Schedule 1 of the HRIP Act provides that an organisation that holds health information must not disclose the information for a purpose other than the purpose for which it was collected, except in various specified circumstances. The Association did not submit that any of the stipulated exceptions applied.
Rather, the Association rightly accepts the correctness of the MNCLHD's submission but insists that the documents which contain "health information" should nevertheless be produced, with patient names and numbers pseudonymised to overcome the restrictions of the HRIP Act. The difficulty with that approach is that it will require the MNCLHD to create a new document or record, which goes beyond the WHS entry permit holders' rights under Part 7 of the WHS Act. Accordingly, the Commission cannot order, pursuant to s 142(3), that such documents be created and produced. At best the documents can be produced with the "health information" redacted.

[13]

Seventh Reason: The Orders should not be made a matter of discretion

Lastly, the MNCLHD submits that the Commission should in any event, decline to make the orders sought as a matter of discretion because: 1. the MNCLHD has in good faith, produced a significant volume of documents to the Association as requested; 2. Ms Edwards and her colleagues have spent many hours locating and packaging those documents; 3. significantly more time and resources will be needed to locate and package the remaining documents, in circumstances where they extend for long historical time periods; and 4. in many cases, require the exercise of the MNCLHD's discretion as to whether or not they meet the broad and vague descriptions given in the Notices.
The Association submits that the right of a WHS entry permit holder to require that he or she be allowed to inspect or make copies of documents under ss 118(1)(d) or s 120(2) is absolute and not constrained by reference to the time or effort involved in facilitating inspection. Accordingly, so the Association submits, if the Commission find that inspection and copying of the relevant documents was required under the WHS Act, there is no discretionary basis upon which the Commission would decline to make orders. I do not accept that submission.
The Commission's power to make orders of the kind sought by the Association is found in s 142, which I have set out earlier in this decision. The wording of s 142 makes it plain that the making of an order pursuant to the section is a matter of discretion. While I accept that the Commission would be extremely slow to decline to make an order requiring a relevant PCBU to allow a WHS entry permit holder to inspect, and make copies of, documents that are directly relevant to the suspected contravention, no matter how much time and effort is involved in facilitating that process, it nevertheless does have a discretion not to make such an order.
Whether I should exercise my discretion not to make the orders sought is a question that must be considered in the context of each of the categories of documents sought.

[15]

Item 3 (Sch A & B)

Revised Item 3 of both Schedules A and B to the Notices seeks: "The most recent Security Improvement Audit and resultant Security Improvement Plan for the Coffs Harbour Acute Mental Health Unit and Community Mental Health, and the policies and procedures relating to risk assessments conducted and how controls are determined."
The MNCLHD submits that it is not obliged or should not be obliged to produce such documents for the first, second, fourth, fifth, sixth and seventh reason discussed above.
As I have already stated, I do not accept the first reason.
In relation to the second and fifth reasons, if the documents sought contain or are 'employee records' within the meaning of s 120(2), I would agree that they need not be provided pursuant to that section or will require redaction of that part that comprises the 'employee record', as notice pursuant to ss 120(3) and 120(4) and reg 29 was not provided. If the documents are not, or do not contain 'employee records', the second and fifth reasons would not prevent the documents being produced pursuant to s 118(1)(d). If the documents contain health information, that information would need to be redacted.
According to Ms Edwards the "Security Improvement Plan" (and only that document within Item 3) contains employee records, being "employee names in the context of identifying roles in relation to the Security Improvement Plan." I accept that this is so. That being the case, subject to consideration of the other reasons why the documents should not be produced, a redacted copy of the Security Improvement Plan should be produced, along with the other documents specified, pursuant to s 118(1)(d). There was no evidence that the Item 3 documents contain health information.
In relation to the fourth, sixth and seventh reasons, Ms Edwards gave the following evidence [7] : "The Security Improvement Audits are conducted every 2 years and are facility based. The report is either not relevant at all to Mental Health, Alcohol and Other Drugs or would contain a small section on Mental Health if our directorate was included in the audit for that period. The following steps would be required to obtain it: ● obtain the document from Work Health and Safety and People & Culture directorates; ● review the results specifically applicable to CHAMHU and CMH to determine if CHAMHU and CMH were included in the audit for that period and create an extract of the same. These documents would not have been accessible from the computer on-site during the entry."
Both Ms Edwards and Ms Jones were cross examined in respect of the accessibility of the documents from a computer at the CHAMHU or CHCMH. Ms Edwards evidence was essentially to the effect that the documents were accessible through the People and Culture Directorate, the work health and safety manger (who is part of the People and Culture Directorate) or the facility manager of the Coffs Harbour Base Hospital, being the wider facility of which the CHAMHU and CHCMH form part. Further, Ms Edwards gave evidence that she had in fact obtained a copy of the audit by making a verbal request of the People and Culture Directorate and a copy was sent to her by email.
The MNCLHD submitted that the "broader hospital premises are not part of [the] identified workplace" being the CHAMHU and the CHCMH and that "the concept of a document being accessible from a computer kept at the workplace does not extend to a situation where it's necessary to contact someone who is not involved in or participating in the entry for them to go and obtain a copy of the document from someone else where that document is not otherwise just accessible in the sense that the officials could go to a computer in the workplace with some assistance and access it …" [8]
"Workplace" is defined in s 8 of the WHS Act to mean "a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work." Regulation 27 of the WHS Regulations requires a Notice of Entry under Part 7 to include "the name and address of the workplace entered or proposed to be entered".
In this case, as I noted earlier in this Decision, the Notices stipulated the name and address of the workplace being entered as "Coffs Harbour Accurate Mental & Community Mental Health, Mid North Coast LHD, 342 Pacific Highway Coffs Harbour 2450." It seems to me that the description of the workplace in the Notice, combined with the definition of workplace, is sufficient to include the whole of the Coffs Harbour Base Hospital and it would be quite artificial, and contrary to the object of the WHS Act for the MNCLHD to avoid its obligations under s 118(1)(d) (or s 120(2)) on the basis that documents that are directly relevant to a suspected contravention are kept elsewhere in the hospital precinct.
In any event, I consider that the ability of an employee such as Ms Edwards to request and obtain via email to her work computer, a copy of the document sought by the WHS entry permit holder, satisfies the requirement that the document be "accessible from a computer that is kept at the workplace."
In the premises I do not consider that the fourth reason provides a sound basis for not requiring the MNCLHD to allow the WHS entry permit holders to inspect, and makes copies of, the documents sought in (revised) Item 3 of Schedules A and B.
I am not persuaded that the sixth reason - that the documents are not directly relevant to the suspected contravention - provides a basis for not making an order in respect of Item 3. Prima facie, the documents are relevant to assessing how and/or whether the MNCLHD has identified the risk of violence and/or aggression within the workplace and whether measures such as those listed in paragraph [96] and/or other measures, have in fact been taken to address those risks.
Lastly, in respect of the seventh reason, I am not persuaded that the work involved in providing the requested documents is particularly onerous, nor that there is any other basis upon which I would exercise my discretion not to make an order regarding (revised) Item 3 of Schedules A and B.
In the circumstances I propose to make an order, consistent with the WHS entry permit holders' entitlement under s 118(1)(d), that the MNCLHD provide copies of the document the most recent Security Improvement Audit and resultant Security Improvement Plan for the Coffs Harbour Acute Mental Health Unit and Community Mental Health, and the policies and procedures relating to risk assessments conducted and how controls are determined, provided that the names of any employees shall be redacted.

[16]

Item 5 (Sch A & B)

Revised Item 5 of Schedules A and B to the Notices seeks: "VPM/PMVA training records for nursing staff including dates of training, mode of delivery, and showing which staff have completed each component of the training including - online component, personal safety and team-based restraint, and which staff have not; including unredacted staff names."
The MNCLHD submits that it is not obliged or should not be obliged to produce such documents for the first, second, third, fifth, sixth and seventh reason discussed above. It has already provided to the Association a report which provides some of the information requested, save that the employee names were redacted, and which showed numbers of employees who have not completed the training.
Ms May gave the following evidence in respect of these documents: "a. The NSW Health 'Violence Prevention and Management Training Framework for NSW Health Organisations PD2018_043', … specifies the minimum standards for training delivered to staff across NSW Health and provides a consistent framework to enable staff to respond effectively to difficult, challenging, disturbed and/or violent behaviour of patients and visitors in the workplace. There are four categories of VPM/PMVA (Violence Prevention Management/Prevention Management of Violence and Aggression) training. The category staff are assigned, and therefore the violence prevention and management training required, must be informed by the documented safety and security risk assessments undertaken for each workplace. The PCBU is required to hold records on the VPM/PMVA training for each staff member and the MNCLHD has documented systems of work that detail that VPM/PMVA training is used as a control measure to eliminate, or mitigate, risk for staff. b. We need this information to contain unredacted employee names so that we can cross reference employee names with the areas they work where a designated level of risk has been categorised, the incidents of violence and aggression (including exposure to repeated incidents) they may have been involved in and when training has been provided, to assess whether the employee has been provided the adequate level of training required for the exposure to identified risk in the unit/area they are working in. Employee names identified in repeated incidents can also inform how the PCBU is assessing what further risk mitigation actions may be required for that employee to ensure their health and safety. c. We need this information over a 12-month period to reflect when relevant training was provided, including any refresher training, and this will assist in making assessments on the actions of the PCBU to ensure compliance with their own policies and procedures to ensure workers have adequate training and instruction, as required under s 19(3)(f) of the WHS Act, to meet the needs to manage the risks associated with patients."
Ms Edwards gave evidence that the records sought contain employee names, staff numbers and employee designations. Self-evidently the documents sought are 'employee records'.
Ms Edwards also gave evidence that: "The records are available on every computer, but a Manager would be required to run a report in My Health Learning and export to an Excel spreadsheet. The report for any period records employees who have received training in that period only and would not include all of the information requested by the Association." [9]
The second and fifth reasons for not making the order sought in respect of (revised) Item 5 are made out, as the documents sought are employee records and the Notices did not comply with ss 120(3) and 120 4) and reg 29. Accordingly, I cannot make an order pursuant to s 142(3) that the records be produced with the staff names unredacted.
The evidence was not entirely clear as to whether the redacted report or reports provided were provided for a full 12-month period. If they were not, I propose to make an order, consistent with the WHS entry permit holders' entitlement under s 118(1)(d), that such a report be provided, with staff names redacted.
I am not persuaded that the other reasons given by the MNCLHD justify me not making such an order. I find that: 1. the first reason does not provide a basis for not making the order, as already discussed; 2. the third reason does provide a valid reason for not making an order that the MNCLHD produce a document which shows which staff have not completed training, as such document does not exist and would need to be expressly created, however, the fact that a report needs to be run on a database and then exported into a spreadsheet, does not result in the creation of a new document, but rather is just a mechanism by which data in the database may be inspected and read; 3. I do not accept the sixth reason in respect of the documents sought in Item 5 to the Schedules - the adequacy of training on how to deal with aggressive or violent patients was identified as a basis for the suspected contravention (albeit that it was not particularised in the Notices); and 4. lastly, in respect of the seventh reason, while I am not persuaded that the work involved in providing the requested document is particularly onerous, or that there is any other basis upon which I would exercise my discretion not to make an order regarding (revised) Item 5 of Schedules A and B, I propose to exercise my discretion to amend the description of the documents sought to ensure that it does not require the MNCLHD to create documents which do not exist and does not require the disclosure of employee records.

[17]

Item 6 (Sch A)

Revised Item 6 of Schedule A seeks: "Rosters and daily allocation sheets for the preceding six months with unredacted staff names, pseudonymised patient names/numbers, and other patient and health information included."
The MNCLHD submits that it is not obliged or should not be obliged to produce such documents for the first, second, fifth, sixth and seventh reason discussed above. It has already provided to the Association copies of rosters with employee names removed.
Ms May gave the following evidence in respect of these documents: "a. Rosters and daily allocation sheets are documented records required to be held by the PCBU that details each nurse working on a particular shift, and the allocated patients to each staff member. b. Where health and patient information appears on rosters and daily allocation sheets, we need the unredacted health information and pseudonymised patient information to be provided in order to assess the workloads, patient acuity and level of risk that is posed for individual staff members working on each shift. c. We requested this information over the period of six months to assess the patterns of hours of work of staff and the various workloads of individual staff members as this will form part of consideration of the PCBU having met their obligations to ensure the physical and psychological WHS of their staff. d. As detailed above we are using this information in order to assess the PCBU's actions in meeting its obligations to ensure elimination, or mitigation, of psychological risk factors, for example role overload and/or fatigue."
Ms Edwards gave evidence that the documents contain employee names, stafflink numbers and employee designations. Self-evidently the documents sought are or contain 'employee records'.
Ms Edwards also gave evidence that: "Rosters are in the form of large Excel spreadsheets. Allocation Sheets are individual daily sheets. They are in hard copy form. 6 months of allocations are around 168 pages (accounting for 1 page per day)." [10]
Although Ms Edwards did not indicate that the documents contained health information, the allocation sheets evidently do.
The second and fifth reasons for not making the order sought in respect of (revised) Item 6 of Schedule A are made out as the documents sought contain employee records and the Notices did not comply with ss 120(3) and 120 4) and reg 29 and accordingly I cannot make an order pursuant to s 142(3) that they be produced with employee names unredacted. In addition, I cannot make any order requiring the production of health information as this would exceed the rights the WHS entry permit holders have under s 118(1)(d), nor can I order the production of documents which requires the MNCLHD to ascribe pseudonyms to the names of patients which might enable the health information to be disclosed, as this would require the MNCLHD to create a bespoke document which would also amount to conferring a right on the WHS entry permit holders that is additional to the rights they have under Part 7.
However, I am able to make an order, consistent with the Association's entitlement under s 118(1)(d), requiring the production of daily allocation sheets for the preceding six months (which I understand have not been provided) with redacted staff names and with patient names/numbers, and other patient and health information also redacted.
I am not persuaded that the other reasons submitted by the MNCLHD provide a basis not to make such an order. I find that: 1. the first reason does not provide a basis for not making the orders, as explained above; 2. I do not accept the sixth reason - the suspected failure of the MNCLHD to hire or provide more staff to reduce workloads, maintain appropriate patient numbers and ensure adequate numbers of experienced staff are rostered on with more junior staff, were identified as bases for the suspected contravention (albeit that they were not adequately particularised in the Notices) and thus the rosters and allocation sheets are directly relevant to those suspected contraventions; and 3. in respect of the seventh reason, I am not persuaded that the work involved in providing the requested documents is particularly onerous, nor that there is any other basis upon which I would exercise my discretion not to make an order regarding (revised) Item 6 of Schedule A.

[18]

Item 9 (Sch A)

Revised Item 9 of Schedule A seeks: "IMS+ entries relating to violence and/or aggression for the 12 months to date, with unredacted staff names, pseudonymised patient names/numbers, and other patient and health information included."
The MNCLHD submits that it is not obliged or should not be obliged to produce such documents for the first, second, fifth, sixth and seventh reason discussed above. It has already provided to the Association copies of IMS+ entries for 12 months, with employee and patient and health information removed.
Ms May gave the following evidence in respect of these documents: a. ims+ is NSW Health's single, state-wide, cloud-based incident management system where all NSW Health staff are required to report all incidents, near misses and consumer feedback into an incident management system. These ims+ entries include staff's exposure to violence and aggression. b. We need the above information to have unredacted employee names to allow for assessment of how often staff have been involved in incidents of violence and aggression and this will be used to cross reference with VPM/PMVA training records, rosters and allocations of individual staff members to assess appropriate knowledge, skills and whether training has been completed and whether any patient allocation, fatigue levels of staff or role overload issues may have impacted the incidents. c. Pseudonymised patient names and numbers and unredacted health information will allow for the assessment of the recurrence of repeated incidents of violence and aggression from individual patients and the health information will inform on the known and foreseeable risk an individual patient might pose. d. We need twelve months of records to inform on potential patterns of known levels of violence and aggression of individual patients (including through patient readmissions) to inform on how such hazards posed by the patient have been eliminated, or mitigated, for staff safety. The twelve months of data will also inform on the potential increased risk of psychological risk of staff who may be regularly involved in known levels of patient violence and aggression. e. Along with the aforementioned details on the use of the ims+ data, where there are repeated incidents of violence with the same patient, the unredacted health advice will inform on whether the clinical treatment of the patient on each occasion has been satisfactorily provided to ensure known levels of risk associated with the patient have been eliminated, or mitigated, as required under the WHS Act. The ims+ data will also be able to be used to assess whether the staff involved in any patient incidents have had the adequate training to eliminate or mitigate the known and foreseeable risks posed by the patient."
Ms Edwards gave evidence that in most cases "[IMS+] entries will include employee names in the context of identifying who reported an incident and/or which employees were involved in or affected by an incident" and that the records "include patient details and health information." Ms Edwards also gave evidence that: The records are accessible from all computers in the units, but only an employee with mental health district level access would be able to access all the information to generate a report over 12 months." [11]
The second and fifth reasons for not making the order sought in respect of (revised) Item 9 of Schedule A are made out, as the additional information sought (noting that redacted copies of the IMS+ entries for 12 months have been provided) are employee records and the Notices did not comply with ss 120(3) and 120 (4) and reg 29 and accordingly I cannot make an order pursuant to s 142(3) that they be produced. In addition, I cannot make any order requiring the production of health information as this would exceed the rights the WHS entry permit holders have under s 118(1)(d), nor can I order the production of documents which requires the MNCLHD to ascribe pseudonyms to the names of patients which might enable the health information to be disclosed, as this would require the MNCLHD to create a bespoke document which would amount to conferring a right on the WHS entry permit holders that is additional to the rights they have under Part 7.
In circumstances were the MNCLHD has already provided to the Association copies of IMS+ entries for 12 months, with employee and patient and health information removed, I do not propose to make an order with respect to (revised) Item 9 of Schedule A.
For completeness, and if I am wrong in not requiring production of the IMS+ entries with unredacted staff names, due to the failure of the WHS entry permit holders to comply with ss 120(3) and 120 4) and reg 29, I find that: 1. the first reason does not provide a basis for not making the orders, as explained above; 2. I do not accept the sixth reason - one of the risks identified by the WHS entry permit holders was the risk of being physically injured by violent and aggressive patients. The permit holders suspected that certain things were causing this risk to arise, as detailed in paragraph [95] above and they are entitled to assess, by reference to the IMS+ entries, whether this was in fact the case. The IMS+ entries are directly relevant to the suspected contraventions; and 3. in respect of the seventh reason, I am not persuaded that the work involved in providing the requested documents is particularly onerous, nor that there is any other basis upon which I would exercise my discretion not to make an order regarding (revised) Item 6 of Schedules A.

[19]

Item 10 (Sch A)

Revised Item 10 of Schedule A seeks: "Ims+ entries relating to staffing and/or skill mix for the 12 months to date, with unredacted staff names, pseudonymised patient names/numbers, and other patient and health information included."
The MNCLHD submits that it is not obliged or should not be obliged to produce such documents for the first, second, fifth, sixth and seventh reason discussed above. As already recorded, it has already provided to the Association copies of IMS+ entries for 12 months, with employee and patient and health information removed.
Ms May gave the following evidence in respect of these documents: "a. These ims+ entries include staff concerns relating to staffing and/or skills mix they may experience in their workplace. b. We need this information to assess the relevant staffing levels and or skills mix as the appropriate staffing levels will have an impact on levels of risk within the workplace. c. We need the above information to have unredacted employee names to allow for assessment of how often staff have been working when there is inadequate staffing and/or skill mix. d. Unredacted health information and pseudonymised patient information is required to be considered in the assessment of staffing and skills mix. Acuity of patients requires consideration by the MNCLHD when managing risks of violence and aggression, and patient health and other information will inform on whether the staffing or skill mix in place to address patient acuity at the time of any incidents had an impact on the WHS of staff. e. Twelve months of data is required to assess whether there are patterns of inadequate staffing and/or skill mix and this can be used to inform on the potential to further exacerbate the levels of risk in the workplace. f. Along with aforementioned use of the information, this information will be used to assess the relevant staffing levels and or skills mix, as the appropriate staffing levels and experience will have an impact on managing the levels of risk within the workplace. These ims+ reports relating to inadequate or understaffing and/or inadequate or poor skills mix may be risks that lead to potential WHS issues. MNCLHD have obligations to adequately staff the mental health areas with appropriately skilled and experienced staff to manage the risks within the mental health area."
Ms Edwards' evidence regarding this category of documents was the same as for (revised) Item 9 of Schedule A.
My reasons in respect of (revised) Item 9 of Schedule A apply mutatis mutandis to (revised) Item 10 of Schedule A. In respect of the sixth reason relied on by the MNCLHD to resist the order sought, one of the reasons the WHS entry permit holders suspected a contravention of s 19 of the WHS Act was unsuitable skill mix of staff, in particular too many junior staff rostered together and that this was exposing staff to the risk of being physically injured by violent and aggressive patients and to the risk of psychological injury. I consider that the WHS entry permit holders were entitled to inquire, by reference to the IMS+ entries, whether this was in fact the case and that the IMS+ entries are therefore directly relevant to the suspected contraventions.
In circumstances were the MNCLHD has already provided to the Association copies of IMS+ entries for 12 months, with employee and patient and health information removed, I do not propose to make an order with respect to (revised) Item 10 of Schedule A.

[20]

Item 16 (Sch A)

Revised Item 16 of Schedule A seeks: "Copy of risk register, specifically extracts of the WHS risk register in place at the time of the Entry Notice that apply to the Coffs Harbour Acute Mental Health Unit and Community Mental Health (but may also apply District-wide) and should include details on violence and aggression, role overload and working in isolation."
It may be recalled that Schedule A to the Notices related to the CHAMHU while Schedule B related to CHCMH. No request was made in Schedule B for a copy of the risk register relating to the CHCHM. Consequently, to the extent it is a different document, I do not consider that the WHS entry permit holders now have an entitlement to receive a copy of it.
MNCLHD submits that it is not obliged or should not be obliged to produce a copy of the risk register for the CHAMHU, or an extract from it as sought by the WHS entry permit holders, for the first, second, fifth, sixth and seventh reason discussed above.
Ms May gave the following evidence in respect of these documents: "a. NSW Health organisations maintain a risk register which provides an accurate and complete record of risk assessment and management activities. The risk register is to be subject to regular review and update as risks are addressed and new risks identified. b. We need the risk register to provide unredacted employee names as this information may be required in order to assess risk management of individual staff members cross referencing with ims+ reports and staffing rosters and allocation sheets. c. Unredacted health information and pseudonymised patient information is required as this information can be used to assess risk along with ims+ reports and staffing rosters and allocation sheets. d. We need the risk register to be at the date of Entry to the facility as this information can then be assessed as to whether it accurately reflects a complete record of risk assessment and management activities that may be identified when cross referencing with ims+ reports, staffing rosters and allocation sheets. e. The NSWNMA will accept extracts of the WHS risk register in place at the time of the Entry Notice that apply to the CHAMHU (but may also apply District-wide) and should include details on violence and aggression, role overload and working in isolation."
Ms Edwards gave evidence that the risk register includes "employee names, titles and email addresses in the context of identifying 'owners' of risk". She also gave the following evidence: "The Risk Register at the time of the entry was maintained in the Enterprise Wide Risk Management System (ERMS). It required consultation with the Internal Audit and Risk Directorate and management level access to view and download or print/scan [a] PDF version of the of the information. The Risk Register was not available in hard copy in the CHAMHU or CHMCH (sic). The Risk Register is organisation-wide and includes risks identified in other service units. To prepare a record containing only parts relating to specific risks would require preparing a new document extracted from the broader risk register. I also note that the entries were conducted during a time the ERMS system was being transferred to the newer ProTECHT system." [12]
The second and fifth reasons for not making the order sought in respect of (revised) Item 16 of Schedule A are made out to the extent the documents sought contain employee records, as the Notices did not comply with ss 120(3) and 120 4) and reg 29, and accordingly I cannot make an order pursuant to s 142(3) that they be produced with employee names unredacted.
However, I can see no reason why I would not make an order, consistent with the WHS entry permit holders' entitlement under s 118(1)(d), requiring the production of the risk register applicable to the CHAMHU and in place at the time of entry, that is, 8 November 2022, with employee names, titles and email addresses redacted.
I am not persuaded that the other reasons submitted by the MNCLHD provide a basis not to make such an order. I find that: 1. the first reason does not provide a basis for not making the orders, as explained above; 2. I do not accept the sixth reason - Ms Edwards' evidence implicitly accepts, or at least does not deny, that the risk register contains information "relating to the specific risks". To the extent the risk register contains entries related to the risks of being physically injured by violent and aggressive patients and to the risk of psychological injury, in particular arising from any of the reasons identified in paragraph [95], it should be produced as requested. If the MNCLHD does not wish to disclose information relating to other risks or concerning other 'service units', that part of the risk register may be redacted; 3. in respect of the seventh reason, I am not persuaded that the work involved in providing the requested documents is particularly onerous, nor that there is any other basis upon which I would exercise my discretion not to make an order regarding (revised) Item 16 of Schedule A.

[21]

Item 6 (Sch B)

Revised Item 6 of Schedule B seeks: "Caseload numbers for each staff member for the preceding 6 months, with unredacted employee names."
The MNCLHD submits that it is not obliged or should not be obliged to produce such documents for the first, second, fifth, sixth and seventh reason discussed above. It has already provided to the Association a report with caseload numbers for the preceding six months with employee's names redacted.
Ms May gave the following evidence regarding (revised) Item 6: "a. Caseload numbers are the numbers of individual consumer cases assigned to each staff member working in the community mental health team. b. This information must provide unredacted employee names to allow for the identification of individual staff members case loads and assessment of staff members' exposure to work overload. c. This information is required for a six-month period in order to determine staff workloads and exposure to fatigue over that period of time and this will be cross referenced with other data to information on levels of WHS risk in the workplace d. As above, this information is needed to identify role overload issues for individual staff members as role overload is serious risk factor for psychological injury."
Ms Edwards gave evidence that the records sought include employee names. She also gave evidence that they included patient information, however the Association did not seek an order that this information be provided as part of the caseload numbers. Ms Edwards also gave evidence about what is involved in preparing the report sought, however such evidence is irrelevant in circumstances where the evidence established that the report had been prepared and provided, but that the employee names had been redacted.
The second and fifth reasons for not making the order sought in respect of (revised) Item 6 of Schedule B are made out to the extent the documents sought contain employee records as the Notices did not comply with ss 120(3) and 120 4) and reg 29, and accordingly I cannot make an order pursuant to s 142(3) that they be produced with employee names unredacted.
For completeness, and if I am wrong in not requiring production of the caseload numbers with unredacted employee names, due to the failure of the WHS entry permit holders to comply with ss 120(3) and 120 4) and reg 29, I find that: 1. the first reason does not provide a basis for not making the orders, as already noted; 2. I do not accept the sixth reason - the workload of nurses was identified as a suspected cause of nurses being exposed to the risk of psychosocial injury in particular fatigue, stress and anxiety due to having to care for too many patients (albeit that it was not adequately particularised in the Notices); and 3. the seventh reason falls away in circumstances where the requested report has in fact been produced.
In the premises I do not propose to make an order requiring the production of documents as described in (revised) Item 6 of Schedule B.

[23]

Endnotes

This revised description of Item 3, Sch A & B was contained in the 'Outline of Claims for the Applicant' and the 'Outline of Submissions for the Applicant' both filed on 6 July 2023 and was confirmed in the Outline of Submissions in Reply for the Applicant filed on 25 August 2023 at [26(a)]. In an aid memoire provided to the Commission during closing submissions the description of Item 3 was expressed as follows: "Any risk assessment undertaken in relation to violence and/or aggression in the facility, specifically the most recent Security Improvement Plan for the Coffs Harbour Acute Mental Health Unit and Community Mental Heal, and the polices and procedures relating to risk assessments conducted and how controls are determined." In light the Association's submission at [26(a)] of its Outline of Submissions in Reply that: "The order sought does not seek "any risk assessment", but the most recent Security Improvement Audit and resultant Security Improvement Plan", I have disregarded the description of Item 3 in the aid memoire.
See e.g., Tcpt, 30 August 2023, p 28(48)-(50), p 40 (1) - (21) (Ms May); p 70(36) - 71(1) (Ms Guinea)
Upheld on appeal on a different point.
Tcpt, 30 August 2023, p 59(38) - (45).
Notes in the text of an Act may be taken into account in interpreting a provision of the Act: Interpretation Act 1987 (NSW), s 34(1) and see Farkas v R [2014] NSWCCA 141; 243 A Crim R 388 at [30] (Basten JA); Bondi Beach Astra Retirement Village Pty Ltd v Assem [2020] NSWSC 1814; 20 BPR 41,541 at [43] (Meagher JA).
Explanatory Memorandum - Model Work Health and Safety Bill at [445].
Respondent's Outline of Submissions dated 11 August 2023 at [15].
Exhibit R7, Annexure KE-3
Tcpt, 14 September 2023, p 43 (24) - (32).
Exhibit R7, Annexure KE-3.
Exhibit R7, Annexure KE-3
Exhibit R7, Annexure KE-3 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2023

Parties

Applicant/Plaintiff:

New South Wales Nurses and Midwives' Association

Respondent/Defendant:

Mid North Coast Local Health District

Legislation Cited (15)

Work Health and Safety Regulations 2017(NSW)

Work Health and Safety Regulation 2017(NSW)

Work Health and Safety Regulations 2011(Qld)

Work Health and Safety Act 2011(NSW)ss 3, 4, 8,17,19,117

Privacy and Personal Information Protection Act 1998(NSW)

Health Records and Information Privacy Act 2002(NSW)

Fair Work Act 2009(Cth)

Industrial Relations Act 1996(NSW)

Interpretation Act 1987(NSW)

Privacy Act 1988(Cth)

Work Health and Safety Act 2011(Qld)

Mental Health Act 2007(NSW)

Government Sector Audit Act 1983(NSW)

Police Powers and Responsibilities Act 2000(Qld)

Crimes Act 1914(Cth)

Cases Cited (18)

n Act 1987 (NSW), s 3(3) and Sch 4 Privacy Act 1988 (Cth), s 6 Privacy and Personal Information Protection Act 1998 (NSW), ss 3(1), 4, 18, 25 Work Health and Safety Act 2011 (NSW) ss 3, 4, 8,17,19,117 - 147 Work Health and Safety Act 2011 (Qld) Work Health and Safety Regulation 2017 (NSW), regs 27, 28 and 29 Work Health and Safety Regulations 2011 (Qld), reg 27 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; 251 FCR 470 Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2018] FCA 1065; 280 IR 47 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch [2023] NSWIRComm 1076 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Acciona Infrastructure Australia Pty Ltd & Anor [2017] NSWIRComm 1000 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] QIRC 188 Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] ICQ 15 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 National Tertiary Education Industry Union v Central Queensland University [2009] FWA 780 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 Ramsay v Menso [2018] FCAFC 55; 260 FCR 506 Ramsay v Sunbuild Pty Ltd [2014] FCA 54 Texts Cited: Macquarie Dictionary, online edition, 2023 Category: Principal judgment Parties: NSW Nurses and Midwives' Association (Applicant) Mid North Coast Local Health District (Respondent) Representation: Counsel: M Gibian SC (Applicant) D Fuller (Respondent) Solicitors: Minter Ellison (Respondent) File Number(s): 2023/138770 Publication restriction: Nil

[2020] QIRC 188