The applicant in these proceedings, in effect, seeks a stay pursuant to ss 229(3) of the Work, Health and Safety Act 2011 (NSW) of two improvement notices being the number 7-468009 and 7-468011 issued by Ms Jodie Toole, a senior inspector of the respondent on 6 February 2024 (the "Notices").
The improvement notice 7-468009 directed the applicant to take the following measures:
1. a. providing workers, at the commencement of an investigation, with an estimated timeline and timeframe for the completion of the investigation which ensures a timely and expeditious investigation process.
b. providing workers with formal, regular and documented communication regarding the progress of an investigation while it is underway.
2. You must ensure workers are consulted in the development of the system of work.
3. You must ensure the system of work which is developed is reviewed and as necessary revised to ensure it remains effective.
4. You must ensure that information, training and instruction is provided to workers on the system of work once developed and implemented.
Improvement notice 7-468011 directed the applicant to take the following measures:
1. You must ensure, so far as is reasonably practicable, the psychological health and safety of workers by reviewing, implementing and maintaining a safe system of work which minimises the impact on workers while an investigation into misconduct and performance is being undertaken by ensuring workers who are being investigated are placed in alternate duties which are commensurate with their position, duties and functions prior to the commencement the investigation while it is being completed.
2. You must ensure workers are consulted in the development of the system of work.
3. You must ensure the system of work which is developed is reviewed and as necessary revised to ensure it remains effective.
4. You must ensure that information, training and instruction is provided to workers on the system of work once developed and implemented.
At the hearing of the stay today the applicant relied upon an affidavit of a Mr Daryl Peter Currie, Mr Currie's total position is Executive Director of the Professional and Ethical Standards Directorate for the New South Wales Department of Education. Mr Currie was not required for cross-examination, that affidavit was read without objection.
The respondent relied upon an affidavit of Ms Jodie Toole. There were one or two objections to that affidavit and Ms Toole was not required for the purpose of cross-examination.
The background event that led to the issuing of the notices was a request for services which contained allegations arising from the disciplinary investigation into a Ms Lavender. From this, the evidence of Ms Toole had the formed the following view:
6. On 5 February 2024 having reviewed all the information and documentation I formed a reasonable belief that the Department had failed to ensure the psychological
health and safety of workers by minimising the impact of the psychological risks to the workers' health and safety by failing to ensure investigations regarding misconduct and performance of workers is completed in a timely and expeditious manner and not having a process and prescribed timeframes to provide formal, regular and documented updates on the progress of an investigation into misconduct and performance to workers while an investigation is underway.
7. I also formed a reasonable belief that the Department is exposing workers to further psychosocial risks from the current system of work for the management of conduct and performance being inadequate as workers are allocated alternate duties during an investigation which are not commensurate with their position, duties and functions prior to the investigation which results in the workers being exposed to further psychosocial risks at the alternate duties location from the tasks being performed.
The notices were the subject of an internal review undertaken some time in February 2024, the exact date I am not certain of but there is reference in the evidence of Ms Toole that she received an email on 21 February 2024 which confirmed that the notices were affirmed.
This application was filed on 14 March 2024 and as yet, there is no date for hearing of the substantive matter, nor have any directions as yet been made for the filing and serving of evidence and submissions with respect to this substantive hearing.
It is important to note that the time for compliance with the notices falls on this Saturday being Easter Saturday, 30 March 2024. As tomorrow is a public holiday, today is the last working day for compliance with the notice and therefore, the necessity for an ex tempore decision.
Turning to the applicable principles. The parties were in agreement as to what these were and these are conveniently set out in paras 2.1 to 3.4 of the applicant's written outline of submissions which are as follows:
2. POWER TO MAKE THE ORDER SOUGHT AND LEGAL TEST TO BE APPLIED WHEN DETERMINING A STAY APPLICATION
2.1 Section 229(3) of the Act confers power upon the Commission to stay the operation of a decision that is the subject of an external review pending the resolution of an external review application.
2.2 The most authoritative construction of that section by the Commission appears in Elgas Limited v SafeWork NSW (No 2) [2021] NSWIRComm 1102, in which Sloan C considered whether a decision of the Respondent should have been stayed pending the outcome of an application to have it externally reviewed.
2.3 Commissioner Sloan at [2] determined that the test for whether a stay of the kind sought by the Applicant should be granted is twofold and comprised of the following:
"First, is there a serious question to be tried? And second, does the balance of convenience favour the granting of a stay of proceedings?"
2.4 Commissioner Sloan applied that orthodox two-tiered approach when considering, whether to grant the stay sought in Elgas' case and it appears the Commission proceeded on the same basis when granting a stay in The Secretary of the Department of Education, in their capacity as such v SafeWork NSW Industrial Relations Commission of New South Wales Proceedings No. 428792 of 2023.
2.5 The Applicant submits that the approach taken in the above matters is correct.
3. REGARD TO RESOLUTION OF SUBSTANTIVE APPLICATION WHEN DETERMINING STAY APPLICATION
3.1 The precise role of the Commission in resolving substantive external review applications was set out by the Full Bench in Transport Workers Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 at [44] as follows:
"... reviews by the Commission under s 229 are in the nature of merits reviews which are undertaken with a view to arriving at the correct or preferable decision: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 (Staff J) at [50}; NSW Rural Fire Service at [67}-[72]. The Commission conducts a hearing de nova and engages in a full consideration of the matter, with all matters being considered afresh. Accordingly, there is no need for an applicant for external review to establish error in the decision-making process: Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009 at [23], [26] and [2] (Newall C)."4
3.2 In The Australian Broadcasting Corporation v O'Neill [2006] HCA 46 at [65], the High Court held that in such interlocutory matters, the moving party needs to show a "sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial."
3.3 A good arguable case is one that is more than barely capable of serious argument and yet not one that the judge believes would necessarily have a better than 50% chance of success.
3.4 The applicant for a stay does not have to prove that it has a good arguable case on the balance of probabilities. That said, the Applicant submits that there is a sufficient (if not strong) basis for the Commission to find that the Applicant would be entitled to the relief it seeks in the substantive proceedings.
The respondent and properly so did not take issue with the applicant's submission that there was an arguable case therefore, the sole matter for determination today is whether the balance of convenience favours the granting of the stay as sought by the applicant.
For the applicant, Mr Glissan advanced three matters of prejudice that would be occasioned to the applicant should the stay not be granted, those being firstly, the risk of contravention of the notices which would constitute an offence under the Act, that this could be a risk given where we are today in the compliance with the notice tomorrow.
Secondly, the second form is time and resources and this is my summation of the form of prejudice, time and resources that may well be thrown away by the applicant if the review is successful, and evidence of this is found in the affidavit of Mr Currie and in particular, paragraphs 60 through to 64 which is as follows:
60. If the stay is not granted and consequently the Department is required to begin the process of implementing the changes to its system, it is likely that the process may taKe many months. For example, as outlined above, to amend the Guidelines involves significant consultation amongst a variety of internal and external stakeholders. It is a process that ensures all relevant parties are consulted, as indeed, is required by work health and safety laws. To so implement SafeWork's notices will require a significant period of time, noting that the last major change, that occurred in June 2020 was a result of a two-year intensive consultation and review of the Guidelines,
61. It is also the case that changes to the existing system may require consultation with other Government agencies and Departments, particularly where changes to the Department's misconduct and performance investigation system would affect (particularly adversely affect) the exercise of their powers and discharge of their duties.
62. The Department also cannot guarantee that, if changes resulting in the disclosure of further information and/or information disclosure were otherwise agreed during the consultation process, the NSW Parliament would pass any necessary new legislation or make any consequential legislative amendments within a particular timeframe.
63. Further to this, it may impact the current 606 investigations that are taking 01ace anc are ongoing, for example, investigators may need to be part of the consultation an amended system building process, which will divert them from their substantive duties.
64. Not onlv will the process of changing the Department's existing system be lengthy, it will involve the devotion of public resources that the Department will be unable to recover.
The third basis advanced by the applicant in relation to prejudice, is that the applicant will be compelled to comply with a notice for at least some period of time which is defective and evidence of that is that there is an arguable case.
The respondent submitted that the paramount consideration in determining whether a stay should be granted is the health, safety and wellbeing of employees which is granted by the objects of the Act and the paramount duty under s 19 of the Act.
The respondent submitted that should the stay be granted, it would a risk to the health, safety and wellbeing of workers employed by the respondent. In this respect, I was taken to the report of a Dr John Groth, a clinical psychologist who had been providing psychological treatment to Ms Lavender.
Mr Moir on behalf of the respondent directed my attention to the following paragraph of the report of Dr Groth:
She has engaged well in therapy. She is highly motivated to improve her psychological functioning, however this is being made increasingly more difficult by the prolonged period of time that she has been removed from her place of employment and the very distressing circumstances that surround this.
From this, the respondent submitted that this is evidence of a risk to all other employees of the respondent should the stay be granted in particular, it was advanced that the paragraph in the report is evidence that the lengthy period of time of the investigation and the failure to provide regular reports exacerbated the symptoms of Ms Lavender.
It was also put by the respondent that no steps had been taken by the applicant to comply with the notice however, I was not provided with any basis upon which I should take that into account in terms of not taken to any authority of that being a consideration.
Mr Moir on behalf of the respondent submitted that no regard should be had to the submission by the applicant that they would suffer prejudice by committing of an offence. In support of this submission, the respondent alleged that the relevant policy that governed the process under which Ms Lavender was being subjected to, had not been reviewed since 2006.
Dealing with those last two points first of all, being the steps undertaken by the applicant, it cannot be described as being less than diligent. It did make its application for internal review and review to this body in a period of time which it could not be said to be not cognisant of the potential risk of the committing of an offence.
Secondly, the evidence of Mr Currie at paragraph [14] in relation to the relevant policy, which is called "Guidelines for the Management of Conduct and Performance" is:
The Guidelines are regularly updated and received a significant update in June 2020. Since then, the Guidelines have updated approximately 4 times between 2021 and 2023.
I am not satisfied that the report of Dr John Groth goes as far as providing evidence that the symptoms of Ms Lavender are attributable to those matters that are required to be undertaken in the notices. In particular, firstly, the estimate of time for the conducting of a report and secondly, the regular reporting or feedback to members, both of those being the first requirements under the first notice and then the reviewing of the investigation process under the second notice.
Therefore, is no evidence before the Commission that there is an identifiable risk to the work, health and safety of employees of the respondent's if the stay is granted.
I am however persuaded that there is prejudice that would be occasioned to the applicant and that is in the manner as set out in the submissions of the applicant, I will not repeat what they are.
I am prepared to grant the stay and I direct the parties to confer and provide the registry with an agreed draft orders which reflect this decision.
[2]
Amendments
16 April 2024 - Minor amendments made in Paragraphs [4] and [8].
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Decision last updated: 16 April 2024
Parties
Applicant/Plaintiff:
Secretary, New South Wales Department of Education