Secretary of the Department of Education v SafeWork NSW

Background to the Decision

1. The School at the time the Decision comprised approximately 170 employees, of which 115 were permanent staff, 49 were temporary staff and 10 casual staff.
2. On 25 July 2023, a head teacher approached the School's relieving Principal and requested that a health and safety representative (HSR) be appointed.
3. On or about 28 August 2023, the head teacher contacted the respondent and made a request pursuant to s 54 of the Act for an inspector of the respondent to be appointed to assist in the designation of work groups and HSR's.
4. Negotiation of work groups at the School continued under the direction of the Inspector.
5. A staff survey about work group preferences was prepared by the Principal and sent to all staff for feedback. Following a number of reminders and a 10-day period to respond, 25 responses were received. Of these responses 15 (60%) identified three work groups as the preferred division of work groups - teaching staff, non-teaching staff, and IEC staff (Intensive English Centre).
6. As of 28 September 2023, no agreement as to the number and composition of the work groups could be reached. Following this, the applicant sought assistance from the Inspector under s 54 of the Act to resolve the failed negotiations.
7. On 20 October 2023, the Inspector sought information from the applicant which was provided that same day.
8. The Decision provided that there would be five separate work groups, as follows: Administration (Workgroup 1) with one health and safety representative, and one deputy health and safety representative. Support Staff (Work Group 2) with two health and safety representatives. Intensive English Centre (Workgroup 3) with one health and safety representative, and one deputy health and safety representative. Subject Faculties Creative and Performing Arts, PDHPE, Science, TAS faculties (Workgroup 4) with one health and safety representative, and one deputy health and safety representative. Subject Faculties; English, EAL/D, HSIE, LOTE, Mathematics (Workgroup 5) with one health and safety representative, and one deputy health and safety representative.
9. The Inspector in her affidavit summarised the material that she took into account in reaching the Decision as follows: a. Discussions with representatives of the PCBU on 6 September 2023 during the site visit. b. Other meetings/discussions with representatives of the PCBU in September and October as referred to above. c. On 10 October 2023 at 3:46 pm I sent an email to Ms Isakov, Ms Vaughan, Mr Arthur and Ms Molyneux to inform them that I would be taking carriage of Statutory Request Two and providing a copy of notice (7-458418) pursuant to section 155 of the Act to obtain information. d. On 16 October 2023 at 4:27 pm I called Mr Harris, following receipt of an email from him at 4:27 pm. The conversation was in relation to the ongoing process and expected timeframe. Shortly, after the phone call, I emailed Mr Harris at 5:01 pm summarising what we had discussed. e. On 18 October 2023 at 4:57 pm I received an email from Ms Molyneux the response to section 155 notice (7-458418) which included attachments. f. On 18 October 2023 at 12:55 pm I made a phone call to Ms Molyneux to enquire if there was a document in relation to existing workgroup arrangements at other schools. After this phone discussion at 12:58 pm Ms Molyneux sent an email with a document attached titled HSR & DHSR List for Safework - 13.9.2023 g. On 20 October 2023 at 11:35 am I sent an email to Ms Molyneux, Mr Arthur, Mr Flint and Ms Isakov to notify them of S155 notice 7-458418 being withdrawn due to it incorrectly referring to WSMS-1-469664 (aka Statutory Request One) as opposed to WSMS 1- 471364 (aka Statutory Request Two). As part of this email, I included a copy of a new corrected notice (7-459494) pursuant to section 155 of the Act to obtain information h. On 20 October 2023 at 4:40 pm I received a response to section 155 Notice (7-459494) which contained the below listed documents. i. DoE Response - Fairfield HS ii. Attachment 1 (survey results) iii. Attachment 2 (staff details)

Approach

1. The approach of the Commission in conducting a review under section 229 of the Act was considered in Transport Workers' Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 ("Deliveroo"). At [44]-[45] the Full Bench held: …There was no controversy that 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 novo 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 [28] (Newall C). 45. Although the Commission determines the matter afresh, it is required to do so as though it were in the shoes of the decision-maker…
2. Following the review, the Commission can confirm, vary or revoke the decision concerned: See NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 at [67].
3. With respect to the determination of "work groups" Clauses 16 and 17 of the Work Health and Safety Regulation 2017 (the "Regulation") prescribe the matters to be considered in negotiations for and determination of work groups. It is appropriate to set these clauses out: 16 Negotiations for and determination of work groups Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that - (a) most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and (b) has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group. 17 Matters to be taken into account in negotiations For the purposes of sections 52(6) and 56(4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following - (a) the number of workers, (b) the views of workers in relation to the determination and variation of work groups, (c) the nature of each type of work carried out by the workers, (d) the number and grouping of workers who carry out the same or similar types of work, (e) the areas or places where each type of work is carried out, (f) the extent to which any worker must move from place to place while at work, (g) the diversity of workers and their work, (h) the nature of any hazards at the workplace or workplaces, (i) the nature of any risks to health and safety at the workplace or workplaces, (j) the nature of the engagement of each worker, for example as an employee or as a contractor, (k) the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term, (l) the times at which work is carried out, (m) any arrangements at the workplace or workplaces relating to overtime or shift work.
4. In Deliveroo at [30], [63]-[69] the Full Bench confirmed that the Commission is required to give effect to cl 16, taking into account the matters set out in cl 17 in reviewing decisions concerning decisions on the determination of work groups.

Submissions

1. The applicant submitted that sub-clauses 17 (c), (h) and (i) of the Regulation are relevant to the Commission's determination of the appropriate work group at the School.
2. The applicant made the following submission concerning the evidence of Ms Molyneaux and the appropriateness of the formation one work group and installing a HSR and deputy HSR: 83. In her first affidavit: a. There was (and remains) a system in place at the School that provides for the Department to consult with the people who work there about work health and safety issues that do, or might, affect them. b. That system provides for workers to report hazards and incidents, express their views and contribute to the relevant WHS Decisions. c. One consultation mechanism used at the School is a WHS Committee. This Committee is made up of eight members from different functions and levels of seniority at the School to represent he people who carry out work at the School. d. The Committee allows for people working at the School to communicate about WHS matters, contribute to decision-making and disseminate feedback about any WHS issues on an ongoing basis. 84. This framework is underpinned by the Applicants: a. Work Health and Safety Consultation Procedures; and b. Work Health and Safety Risk Management Procedure. 85. In Ms Molyneux's second affidavit, with respect to the current structure and approach to representation at the School: a. A copy of the School site map is exhibited at page 58 of Exhibit AM-2. b. The areas accessible to, and by, the staff are shaded grey. c. In short, all staff are required to, or can, access all areas in the School, subject to operational requirements or necessities, for example, where doing so would interrupt teaching. d. All staff can and/or do access (for example): i. Classrooms, ii. Ovals, iii. Playgrounds, iv. The School's assembly hall, v. The admin blocks, vi. Library, vii. Canteen, viii. Staff rooms, ix. Toilets, x. Gym, xi. The one main site entry and exit, xii. Car park, xiii. Indoor soccer field (during class time), xiv. Counsellors' offices, xv. Chemical storage areas, and xvi. The Principal's office. e. Many staff use, or can and/or are exposed to, the same equipment when carrying out their work on School grounds, for example: i. Teachers and grounds and maintenance staff can, and do, use buggies when on playground duty, ii. Teachers who use science laboratories (whether as part of their primary teaching responsibility, as teachers relieving absent staff or because the School simply needs to use those areas for non-teaching or other teaching-related purposes) are in the vicinity of, and/or use, experiment-related chemicals and Bunsen burners, iii. Teachers can use the same classrooms as part of teaching different subjects, for example classrooms used by teachers who teach English and other humanities, and can utilise the fixtures and fittings in those classrooms, iv. Cleaners use the same or similar cleaning equipment and chemicals, v. Translators provide translation services to a range of students across different areas of the School, and vi. Staff who coach sporting teams use the same equipment as those who teach those same sports as part of the PDHPE curriculum. f. Some staff can and/or do also participate in many common activities, for example: i. Teachers can teach the same curriculum in the same areas, for example, as part of their primary teaching duties or when relieving absent colleagues, ii. Teachers from all departments perform playground supervision duties, iii. All staff can park in the School's carpark, iv. Teachers and non-teaching staff use the same IT equipment and system, and v. Teachers and other staff attend assemblies in the Assembly Hall and other common meetings, such as staff meetings. g. The key hazards and risks at the School are common to staff. h. They include hazards and risks relating to: i. Psychosocial health and safety, ii. Traffic and pedestrian risks, for example, those arising from the use of the shared carpark and School entry and exit point, iii. Occupational violence, for example, in relation to student aggression, iv. Infectious diseases, v. Exposure to chemicals and hazardous substances, such as asbestos, vi. Emergencies, such as fires, vii. Cyber security, viii. Anaphylaxis, ix. Electrical risks, x. Site security, and xi. Environmental conditions, such as trips, slips. i. Classes generally begin at 8.50am and end at 2.15pm on Mondays, and 3.00pm on Tuesdays - Fridays, depending on what subjects students are undertaking. j. Staff and students generally arrive at the School between 7.30am and 8.30am and typically depart between 3.15pm and 4.00pm. k. Maintenance activities are usually undertaken between the hours of 7.00am and 3.00pm. Maintenance can also occur outside these times including during school holidays. I. Cleaning is generally undertaken between 5.00am and 6.00pm. m. Staff undertaking traffic management duties relating to supervision of students leaving the school site at the end of the school day do so between 2.15pm and 2.30pm on Mondays and 3.00pm and 3.20pm Tuesdays to Fridays. n. Sporting teams are typically coached by staff between 5.00am and 6.00pm. o. The School library is open to staff between 7.00am and 4.30pm. The School gym is accessed by PDHPE staff as part of student lessons during school hours. p. The canteen is open between 8.00am and 2.00pm. q. The School's ovals are accessible to staff between 8.50am and 3.00pm. r. Teacher amenities, such as bathrooms, are accessible to all staff at any time while on site from 7.00am - 6.00pm, and staffrooms are accessible to staff based in those staffrooms at any time while onsite from 7.00am-6.00pm. s. Administration blocks are accessible by staff when onsite, generally between 7.00am and 3.30pm, counsellors' offices and other wellbeing spaces are accessible by staff working in those areas when onsite, generally between 8.00am and 3.30pm. t. Staff can log into work IT cloud-based systems at any time and the school server while on school site. u. Those accessible times relate to what occurs during School Term. v. The non-School specific accessibilities relating to staff are the Health and Safety Incident Report and Support Hotline and Employee Assistance Program through Converge International. These are available to staff 24 hours a day. 86. Of the Determination, Ms Molyneux gave the following unchallenged evidence: a. There are a number of risks, disadvantages and uncertainties associated with the proposed workgroup model that can compromise safety at the School for staff, students and visitors at the School, including that: i. It is uncertain into which workgroup certain staff fit, leading to a risk that some staff could be excluded from any such group and others could fall within several groups, ii. Adopting an approach to safety that is not a School-wide approach because of an excessive number of workgroups will foreseeably introduce risks, iii. Adopting an excessive number of workgroups could lead to the protraction of the risk management process, iv. Staff members may not wish to participate in the proposed model, including in that there may not be enough staff members willing to fill the numerous HSR and Deputy HSR roles contemplated by SafeWork's workgroup model. b. Leaving that mathematical calculation aside, there is a real probability that staff could not be correctly assigned into the proposed workgroup categories because of the kind of duties that they perform. c. Casual teachers can teach different subjects. d. SafeWork's determination did not contain any guidance on how to identify the workgroup in which each of those staff members should be placed. e. The proposed model will foreseeably introduce risks to the School, not only to staff, but also to students and visitors. f. The large number of HSRs and Deputy HSRs required by the proposed model will require HSRs and Deputy HSRs in different workgroups to consult with other representatives on WHS matters. It is unclear what the process will be when they have conflicting views about how shared risks and hazards should be managed. g. Which HSR's view will be implemented if HSR's disagree about control measures for hazards and risks in a shared space? The time taken to work that out would foreseeably protract the risk management process. h. The workplace manager would need to consult with all five workgroups, in five separate forums with ten representatives in relation to shared risks, in contrast to the existing single WHS Committee model. i. There are currently 94 HSRs across the entire workforce of the Department, which exceeds 157,200 people. j. In my view, the low number of staff who participated in the survey is indicative of what the interest level could be from staff to undertake a HSR role at the School. (Footnotes omitted)
3. As to the survey, the applicant submitted that due to low participation it is of no assistance in determining the views of the workforce for the purposes of sub-clause 17(b) of the Regulation.
4. For its part, the respondent did not oppose nor consent to the orders sought by the applicant. It submitted that this position was consistent with the principles falling from the High Court in R v Australian Broadcasting Tribunal ex parte Hardiman [1980] HCA 13, namely that the decision-maker must maintain impartiality and the appearance of impartiality in proceedings challenging its decision.

Consideration

1. I have considered the materials and information that was before the Investigator and as well as that adduced through the evidence of Ms Molyneux.
2. From the above material and information, it is apparent that a single work group: 1. accounts for all workers on site; 2. is better placed to identify hazards and risks to all workers at the School; 3. is better able to implement risk control measures at the School in a timely and 'whole of school' manner; 4. avoids an outcome in which some workers' health and safety maybe better represented than others; and 5. avoids an outcome in which some workers may be placed in categories of groups despite all high risks to those workers not having been accounted for.
3. I am therefore satisfied that the making of the orders sought will bring about will give effect to sub-clauses 17 (c), (h) and (i) of the Regulation and none of the other sub-clauses of clause 17 of the Regulation militates against the making of the orders.

Orders

1. For the reasons provided above, I make the following orders: 1. Order no. 1 made on 24 January 2024 is set aside. 2. The determination of work groups at Fairfield High School by SafeWork NSW initially made by Inspector Emma Afeaki on 27 October 2023 and thereafter confirmed on internal review on 13 November 2023 is varied under section 229(4) of the Act by removing the work group formation determined by Inspector Afeaki under heading 'Decision to work groups at Fairfield High School (Section 52 of the Work Health and Safety Act 2011)'; and 3. The Commission substitutes the following work group formation: 1. There be one work group at Fairfield High School; 2. The School's WHS Committee framework remain within that one work group; and 3. The one work group contain a HSR and Deputy HSR, should there be persons willing to accept those roles.

Amendments 15 July 2024 - Correction made in Paragraph 7. 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: 15 July 2024