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

Background

1. 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.
2. 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;
• no admission and exclusion criteria for the CHAMHU and as a result variable and complex presentations were being hosted within the units, impacting the workloads of members and inappropriate or short admissions were resulting in overcrowding which correlated with higher incidents of aggressive behaviour;
• excessive and unsustainable workloads was affecting members' psychosocial wellbeing;
• concerns over the skill mix of staff, with a high ratio of junior to senior nurses being a factor in medication errors and other adverse incidents including episodes of violence and aggression incidents towards nursing staff;
• concerns about the continued practice of the use of Health Service Assistance, Security Officers and other non-clinical staff for the direct 'specialling' of patients (referring to the practice of requiring a staff member to maintain continual watch of a patient, one on one); and
• staff shortages due to the absence of a casual or agency pool.

1. How these concerns of members had been conveyed to Mr Holmes was not explained in the evidence.
2. 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.
3. 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.
4. 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.
5. 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."
6. 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.
7. Again, how the members' concerns had been communicated to Mr Holmes, or indeed to Ms Malone, was not explained in the evidence.
8. The evidence did not establish whether a USCC meeting was held at any time after January 2022 and prior to August 2022.
9. 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."
10. 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.
11. 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."
12. 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.
13. 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.
14. 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.
15. 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.
16. 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."
17. 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.
18. 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.
19. 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."
20. 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."
21. 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.
22. 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."
23. 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.

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

1. 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.
2. 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.

The Dispute

1. 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.
2. 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."
3. 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."
4. 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' Positions

1. 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.
2. 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.
3. 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.
4. 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.

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

1. 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.
2. 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.
3. Again, such submission cannot be gainsaid.
4. 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.
5. 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.

Second Reason: The Notices did not meet the relevant requirements

1. 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.
2. 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).

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

1. 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).
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]).
3. 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.
4. 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.

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

1. 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).
2. 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):…".
3. 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.
4. 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).

Third Reason: Items 5 (Sched A & B), 16 (Sched A) and 6 (Sched B) do not already exist

1. MNCLHD submitted that s 120(2) and s 118(1)(d) provides rights to 'inspect' and 'make copies of' "documents' or 'records' - they do not require a relevant PCBU to create new documents or records. It says that certain documents requested by the Association - e.g. documents with pseudonyms used in place of the names of patients, do not exist, but would but have to be specifically created. MNCLHD submits that the creation of documents goes beyond the WHS entry permit holders' rights under Part 7 of the WHS Act and accordingly the Commission cannot order, pursuant to s 142(3), that such documents be created and produced.
2. In response the Association points to the definition of 'document' in s 4 of the WHS Act and s 3(3) and Schedule 4 of the Interpretation Act 1987 (NSW), which confirm that information in a database comes within the definition of 'document' and 'record' and that if a database must be manipulated to allow inspection of, or the production of copies of the information held in the document/database, this is what s 118(1)(d) and 120(2) allow a permit holder to require.
3. I agree with both submissions. However, the 'manipulation' of a database for the purpose of allowing inspection and copying of documents and records does not involve creating new fields or new bespoke reports from the database not previously developed by the relevant person from whom the documents are requested or the relevant PCBU. I explain this further below by reference to the specific categories of documents sought by the Association.

Fourth Reason: The documents comprising Item 3 (Sched A & B) were not at the relevant workplace

1. The MNCLHD says that documents comprising Item 3 of Schedules A and B to the Notices, being certain risk assessments were not kept at or accessible from a computer kept at the CHAMHU or CHCMH and hence the Association had no entitlement to inspect or copy of them pursuant to s 118(1)(d). MNCLHD also submits that the document, to the extent it is an employee record, cannot be obtained pursuant s 120(2) as this subsection "presupposes" that the relevant records are kept at or accessible from a computer kept at the workplace being entered for the purpose of inspecting or making copies of such records.
2. I agree that s 118(1)(d) requires, and s 120(2) presupposes, that the document or record to be inspected or copied is kept at or accessible from a computer kept at the workplace being entered for that purpose. I deal with the evidence regarding the location and accessibility of the documents comprising Item 3 of the Schedules to the Notices in my decision below.

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

1. 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.
2. 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.
3. 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.

Sixth Reason: The Documents are not directly relevant to a suspected contravention

1. The MNCLHD submits that ss 118(1)(d) and 120(2) limit the scope of the documents a WHS entry permit holder may inspect to those that are 'directly relevant' to a suspected contravention. It says, by reference to National Tertiary Education Industry Union v Central Queensland University [2009] FWA 780 at [13] - [16] (Richards SDP), that the qualifier 'directly' implies a limitation on the scope of the documents that may be accessed to those that are precisely or closely aligned to and directly achieve the purpose of ascertaining whether the suspected contravention in fact occurred, as distinct form documents that initiate or advance a train of inquiry.
2. The Association does not cavil with the view, although it correctly in my view submits, by reference to Southern Equities Corporation Ltd (In Liq) v Arthur Andersen & Co (No 5) [2001] SASC 335 at [10] ( Bleby J) which was cited by Flick J in Qantas at [152], that a document may remain "directly" relevant even though it "is not itself proof of a fact in issue but is merely a piece of circumstantial evidence tending, along with other evidence, to prove the fact in issue". Rather the Association simply maintains that each document sought is directly relevant to the suspected contraventions.
3. MNCLHD also submits that in circumstances "where there still been no articulation of any suspected contravention of the WHS Act with the requisite level of particularly, it is difficult to evaluate the relevance of the [d]ocuments." I accept that the level of particularity in the Notices made it difficult for the MNCLHD to determine whether the documents sought were directly relevant to the suspected contravention. However, the evidence of Ms May and Ms Guinea filed in this proceeding has now provided sufficient particularisation to make the task of determining the relevance of the documents relatively straightforward.

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

1. 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.
2. 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.
3. 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.
4. 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.

Decision

1. Before considering each of the specific categories of documents sought by the Association, I should make mention of the fact that neither s 118(1)(d) nor s 120(2) require the production of documents or records by the relevant PCBU or other person from whom the documents are requested to the WHS entry permit holders. Rather those sections permit the inspection and making of copies of documents by the WHS entry permit holders, while they are at the relevant workplace. However, production of the documents or records requested by the WHS entry permit holder, by the relevant PCBU or other relevant person, is an expedient measure that is consistent with an approach to the statutory provisions which has "an eye to common sense" and enables implementation of the provisions "in a clear way on a day-to-day basis at work sites." An arrangement was initially made between the MNCLHD and the WHS entry permit holders for the MNCLHD to produce copies of the documents, rather than for the permit holders to themselves inspect and copy the documents, and the MNCLHD does not resist having to do work to produce copies to the WHS entry permit holders, of the documents and records the permit holders would otherwise be legally entitled to inspect and make copies of.
2. The MNCLHD submitted that an order should not be made requiring it to produce any of the outstanding documents due to the first reason discussed above. For the reasons I have given, I am satisfied the WHS entry permit holders did reasonably suspect before entering the workplace that a contravention had occurred or was occurring, and were entering the workplace for the authorise purpose of inquiring into the suspected contravention and accordingly, the first reason does not provide a basis for me not to make the orders sought by the Association in respect of each of the requested categories of documents.

Item 3 (Sch A & B)

1. 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."
2. 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.
3. As I have already stated, I do not accept the first reason.
4. 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.
5. 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.
6. 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."

Item 5 (Sch A & B)

1. 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."
2. 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.
3. 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."

Item 6 (Sch A)

1. 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."
2. 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.
3. 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."
4. 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'.
5. 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]
6. Although Ms Edwards did not indicate that the documents contained health information, the allocation sheets evidently do.
7. 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.

Item 9 (Sch A)

1. 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."
2. 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.
3. 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."

Item 10 (Sch A)

1. 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."
2. 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.
3. 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."
4. Ms Edwards' evidence regarding this category of documents was the same as for (revised) Item 9 of Schedule A.

Item 16 (Sch A)

1. 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."
2. 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.
3. 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.
4. 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."
5. 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]

Item 6 (Sch B)

1. Revised Item 6 of Schedule B seeks: "Caseload numbers for each staff member for the preceding 6 months, with unredacted employee names."
2. 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.
3. 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."
4. 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.
5. 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.
6. 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.

Orders

1. I make the following orders: 1. Mid North Coast Local Health District is to provide copies of the following documents to Ms Megan May and Ms Zoe-Anne Guinea within 14 days of the date of these orders: 1. the most recent Security Improvement Audit and resultant Security Improvement Plan for the Coffs Harbour Acute Mental Health Unit (CHAMHU) and Coffs Harbour Community Mental Health (CHMH), and the policies and procedures relating to risk assessments conducted and how controls are determined, provided that the names or other details of any employees contained in those documents shall be redacted; 2. to the extent they are able to be produced by running an existing report or reports in a database and exporting that report or reports to a spreadsheet or other suitable software program, VPM/PMVA training records for nursing staff of the CHAMHU and CHMH for a period of 12 months prior to the 8 November 2022, including dates of training, mode of delivery, each training component, and number of employees who have not completed the training, with staff names redacted; 3. daily allocation sheets for the CHAMHU for the six months prior to 8 November 2022, with staff names, patient names/numbers, and other patient and health information redacted; 4. the risk register applicable to the CHAMHU and in place at the time of entry, that is, 8 November 2022, to the extent it has any information relating to the risks of being physically injured by violent and aggressive patients and of psychological injury, with employee names, titles and email addresses redacted; 1. The Amended Application for orders under s 142 of the Work Health and Safety Act 2011 (NSW) is otherwise dismissed. Janet McDonald Commissioner

Endnotes

1. 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.
2. See e.g., Tcpt, 30 August 2023, p 28(48)-(50), p 40 (1) - (21) (Ms May); p 70(36) - 71(1) (Ms Guinea)
3. Upheld on appeal on a different point.
4. Tcpt, 30 August 2023, p 59(38) - (45).
5. 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).
6. Explanatory Memorandum - Model Work Health and Safety Bill at [445].
7. Respondent's Outline of Submissions dated 11 August 2023 at [15].
8. Exhibit R7, Annexure KE-3
9. Tcpt, 14 September 2023, p 43 (24) - (32).
10. Exhibit R7, Annexure KE-3.
11. Exhibit R7, Annexure KE-3
12. 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