State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Frigo v Culhaci [1998] NSWCA 88

George v Rocket & Anor (1990) CLR 104

MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235

Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116

Ninemia Maritime Corp v Trave GmbH & Co KG ('The Niedersachsen') [1984] 1 All ER 398

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Mr C. J. Murdoch QC, instructed by Minter Ellison, for the Applicant.

Mr S. A. McLeod QC, and with him Ms C-L. Godfrey, for the Respondent.

• [1] On 12 February 2021, the Gold Coast Hospital and Health Service (the Applicant) filed an Application for a Stay of the Internal Review Decision of Improvement Notice I2018485 on the condition the Notice is also stayed, pending the hearing and determination of the Application for External Review by the Commission.

• [2] On 2 December 2020, Dale Blight, an inspector under the Work Health Safety Act 2011 (Qld) ('WHS Act') ('the Inspector') issued improvement notice I2018485 ('Training Notice') to the Gold Coast Hospital and Health Service ('the Health Service') relating to the Robina Hospital ('the Hospital') Emergency Department ('ED').

• [3] On 13 January 2021, the WHS Regulator issued internal review decision 57921 confirming the decision of the Inspector in relation to the Training Notice.

• [4] The details of the Training Notice are as follows:

I, Dale Blight reasonably believe on 26-NOV-2020 at 10:43 that you are contravening a provision of the: Work Health and Safety Act 2011 - section(s) 19(3)(F)

• [5] The description of the contravention in the Training Notice states:

You have not ensured, so far as is reasonably practicable the provision of any training, that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking;

Emergency department (ED) workers engage with a range of clients that present to the emergency department. These clients are often verbally, physically aggressive towards ED staff. Nurses have limited knowledge of de-escalation techniques through their initial orientation and through workplace procedures. Many working within the ED have no formal training in de-escalation that would assist them in minimising the risk posed by clients. De-escalation training has been provided to nurses at other hospitals within Queensland Health and is a common control measure. Workers health and wellbeing within the Robina ED is at risk.

• [6] This stay application is opposed by the Respondent.

• [7] The relevant decision regarding the Training Notice was made under section 19(3)(f) of the WHS Act which provides:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of -

(a) workers engaged, or caused to be engaged by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable -

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; ...

• [8] Section 229 of the WHS Act sets out the process for an external review as follows:

(1) An eligible person may apply to the external review body for a review (an external review) of -

(a) a reviewable decision made by the regulator; or

(b) a decision made, or taken to have been made, on an internal review.

(2) A review by QCAT is provided for under the QCAT Act.

See QCAT Act, chapter 2, part 1, division 3 (Review jurisdiction).

(3) A review by the commission is provided for under division 4.

• [9] The Applicant makes its application for stay pursuant to s 229C of the WHS Act, which provides:

(1) The commission may grant a stay of the decision to secure the effectiveness of the review.

(a) may be given on the conditions the commission considers appropriate; and

(b) operates for the period fixed by the commission; and

(3) The period of a stay must not extend past the time when the commission decides the application.

(4) An application affects the decision, or carrying out of the decision, only if the decision is stayed.

• [10] The principles governing the exercise of a discretionary power to stay were enumerated in Alexander v Cambridge Credit Corporation Ltd.[1] Those principles are summarised as follows:

1. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.
2. The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.
3. The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.
4. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
5. The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.[2]

• [11] The Applicant submits that for the purposes of this stay application, the following principles taken from above are apposite:

• there must be an arguable case on the merits;
• the Commission's discretion involves weighing considerations such as balance of convenience and competing rights of the parties; and,
• the risk of the Application proving abortive.

• [12] As previously outlined in the Commission,[3] a 'good arguable' case is 'one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 per cent chance of success'.[4] It is a less stringent test than requiring proof on the balance of probabilities.[5]

• [13] The Applicant submits there was no basis for the Inspector to hold a reasonable belief that the Health Service was contravening a provision of the WHS Act. The three grounds identified in both the Application for Stay and Review by the Applicant in support of this contention are considered below.

Ground 1 - the Inspector erred in accepting the evidence of Health Service staff

• [14] It is agreed among the parties that the Inspector formed his belief based on the following interactions:

• A statement in the meeting with staff on 11 November 2020 that training in de-escalation is not provided on the basis that there is a 'security detail';[6]
• The Nursing Unit Manager's (NUM) statement on 25 November 2020 to the effect that nurses 'used' to get trained in 2018 but the program was 'canned', that it is difficult to get training because of rostering, and there would be nurses who have not received de-escalation training;[7] and
• A discussion with the Unit Manager for the ED to the effect that there would be nurses who have not received de-escalation training, although there is an element at induction.[8]

• [15] The Applicant states this information is too general and obtained from persons without knowledge of the actual state of affairs in relation to the training status of ED staff. There are 168 nursing staff in the ED. The unidentified nursing staff and NUM spoke of their own experience and could not reasonably have been the source of knowledge for the Inspector to have formed his conclusion.[9]

• [16] Reasonable belief is not defined in the WHS Act. In George v Rocket & Anor[10] the High Court was called on to consider the meaning of 'reasonable grounds' in the context of whether or not a Magistrate had reasonable grounds to issue a search warrant. In a unanimous judgment, the Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[11]

• [17] The Respondent asserts there is no reason to doubt the veracity of the information provided to the Inspector by the various nurses, NUM and Unit Manager for the ED. However, the Applicant maintains that it was unsafe for the Inspector to rely on the information of a few witnesses to form a reasonable belief of a contravention of the WHS Act.

Ground 2 - the Inspector sought no information from the Health Service in relation to the Training Notice

• [18] In the s 155 Notice,[12] which required the Health Service to provide the WHS Regulator with certain information, the Inspector did not request any information relating to training statistics or content such as:

• [19] The Applicant argues this information would have allowed the Inspector to understand the true state of affairs in respect of training.

Ground 3 - the facts relied on for the basis of the Training Notice were incorrect

• [20] The Applicant submits that had the Inspector made reasonable enquiries then he would have understood that:

(a) There are two versions of mandatory training available 'Occupational Violence Prevention Fundamentals' and 'Conflict Management and Challenging Behaviour Awareness'.[14]

(b) Contrary to the position articulated to the Inspector by the staff, both versions of the training contain components of de-escalation skills training.[15]

(c) It is accepted by the Applicant that the 'Conflict Management and Challenging Behaviour Awareness' program is more comprehensive than 'Occupational Violence Prevention Fundamentals' training. However, the training is new, takes longer to complete, and is part of a staged 2-year rollout.[16]

(d) Until January 2022, staff who have completed one or the other training are compliant in relation to mandatory occupational violence prevention training.

(e) As at 26 November 2020, 95.4% of the nursing staff in the ED had completed the mandatory OVP training broken down as follows:

(i) 74.71% had completed the 'Occupational Violence Prevention Fundamentals' online program; and

(ii) 20.69% had completed the 'Conflict Management and Challenging Behaviour Awareness' online program.[17]

(f) As at 15 December 2020, 95% of staff across Robina Hospital had completed the mandatory OVP training:

(i) 30% had completed the 'Occupational Violence Prevention Fundamentals' online program; and

(ii) 65% had completed the 'Conflict Management and Challenging Behaviour Awareness' online program.

(g) There are other ways de-escalation training content is delivered in the ED, including in-service training sessions with specific de-escalation training offering in February 2020 and December 2020.[18]

(h) The de-escalation components of the occupational violence prevention training is, in many respects, about effective communication skills, which forms an important part of any nursing role and therefore only builds on fundamental patient care and communication skills nurses are taught and develop through formal nursing education and on the job experience.[19]

(i) Information on occupational violence and de-escalation is available including in an Aggressive Behaviour Management procedure, Occupational Violence and Prevention and Management Guideline, and Occupation Violence Prevention Toolkit for employees, all of which are available to ED staff.[20]

(j) Training is only one aspect of an occupational violence prevention strategy, which in fact contains many elements to manage risk.[21] It is not possible to cherry pick any individual aspect of the strategy without comprehensively assessing the risk and how it is managed by other levers in the strategy and overall systems, which did not occur here.[22]

• [21] This is not an occasion upon which the Commission should speculate on the prospects of success. It is sufficient for present purposes to conclude based on the material before me that the Applicant has discharged its onus in establishing that it has an arguable case.

Balance of convenience and competing rights of the parties

• [22] The Applicant states that, given the Health Service continues to operate a 24/7 healthcare service, there is significant prejudice to the Health Service where it is potentially required to provide further unspecified training to all staff in the ED within 24 hours. Further there is a lack of specificity in the Training Notice to what is meant by 'de-escalation' which makes it unclear what the Health Service is required to comply with.

• [23] The Health Service contend that in assessing the competing rights of the parties, the Commission ought to find that the Health Service's rights weigh heavier in favour of granting the stay. This submission relies on the following three grounds:

(a) WHSQ's right to ensure safe workplaces through the issue of improvement notices is not prejudiced given the Health Service is at all times required to comply with its obligations under the WHS Act and Regulations;

(b) In these circumstances, particularly taking into account that 95% of workers in ED have received occupational violence prevention training, there is no appreciable risk if the stay is granted and the Applicant is subsequently unsuccessful; and

(c) Conversely, the Health Service's capacity to continue to effectively manage health and safety risks across the Robina Hospital are significantly hampered by the inaccurate description of the Health Service's system in the Training Notice and the lack of guidance and direction from WHSQ about what other control measures it expects the Health Service to implement to address the relevant risk.[23]

• [24] In considering the competing rights of each of the parties, the Commission is alive to the purpose of an improvement notice being to protect workers, and others, at a worksite. The Commission is also mindful of the duties and responsibilities of the Respondent as the Regulator of work health and safety in this State. However, those rights and responsibilities are tempered by the mechanism for review established under the WHS Act as exercisable by the Commission.[24]

• [25] The prospect of an abortive appeal arises because the operation of the improvement notice remains in force and, as such, the Applicant continues to remain liable to prosecution by Work Health Safety Queensland until the application for external review is determined.[25]

• [26] The Applicant contends that if a stay is not granted then it is:

(a) required to provide a response to the Training Notice the steps it has taken to remedy the alleged contravention; and

(b) liable to prosecution by WHSQ for any failures to comply with the said notice.[26]

• [27] In answer to the Applicant's submissions, the Respondent says:

(a) In the unlikely event that the Commission was to hold that the Training Notice is void, the applicant may then choose to remove what it has put in place to comply with the notice.

(b) All persons who owe duties under the WHS Act may be liable to prosecution by the Office of Work Health and Safety Prosecutor in the event of contravention of the WHS Act. Again, in the unlikely event that a decision was made to prosecute the applicant for failure to comply with the Training Notice pending finalisation of the external review, then a subsequent decision of the Commission to hold a notice void ab initio would constitute an absolute defence to any such charge.[27]

• [28] I do not accept the submission of the Respondent. Should the stay not be granted, the Applicant would be required to provide a response to the Training Notice regarding what steps it had taken to remedy the contravention of s19(3)(f) of the WHS Act. In short, the Applicant would be required to do the very thing which is the subject of the external review.

• [29] The Applicant bears the onus of demonstrating that the stay order proposed is 'fair to all parties' having regard to the balance of convenience; that is the course most likely to achieve justice between the parties pending resolution of the question of the Applicant's entitlement to ultimate relief.

• [30] Equally, the Commission is obliged to have weighed in balance whether the Applicant's external appeal raises an arguable case. Such an assessment is designed to be 'protective' of the Respondent in the sense of being undertaken to test whether the appeal has 'been lodged without any real prospect of success and simply in the hope of granting a respite against immediate execution upon the judgment'.[28]

• [31] On balance, I am of the opinion that the Applicant has discharged the requisite onus of establishing that there is a proper basis for the granting of a stay. The Applicant has established an arguable case and, in my view, the balance of convenience, after weighing the various rights of the parties, favours the granting of a stay. Accordingly, I make the following orders:

1. Pursuant to s 229C of the Work Health and Safety Act 2011, the internal review decision dated 13 January 2021 is stayed on the condition that the improvement notice the subject of the review is also stayed; and

1. Pursuant to s 229C(2)(b) of the Work Health and Safety Act 2011, the stay of the internal review decision, and the improvement notice the subject of the review, will remain in effect until the application for the external review is heard and determined by the Commission.

[1] (1985) 2 NSWLR 685.

[3] Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116 [21]; MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235 [16].

[4] Ninemia Maritime Corp v Trave GmbH & Co KG ('The Niedersachsen') [1984] 1 All ER 398, 404.

[5] See: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 per Gleeson CJ; Frigo v Culhaci [1998] NSWCA 88.

[6] Affidavit of Dale Blight filed 9 April 2021, [7] and ex DB9.

[7] Affidavit of Dale Blight filed 9 April 2021, [8].

[8] Affidavit of Dale Blight filed 9 April 2021, [9], ex DB10 and ex DB11.

[9] Applicant's Submissions dated 12 May 2021, [15].

[10] (1990) CLR 104.

[13] Applicant's Submissions dated 12 May 2021, [18].

[14] Affidavit of Matthew Jackson filed 29 April 2021 at [12] - [17].

[15] Affidavit of Matthew Jackson filed 29 April 2021 at [15] - [18].

[16] Affidavit of Matthew Jackson filed 29 April 2021 at [21] - [27].

[17] Supplementary Affidavit of Matthew Jackson filed 11 May 2021 at [4].

[18] Affidavit of Matthew Jackson filed 29 April 2021 at [31] - [34].

[19] Affidavit of Matthew Jackson filed 29 April 2021 at [35].

[20] Affidavit of Matthew Jackson filed 29 April 2021 at [36] - [38].

[21] Affidavit of Matthew Jackson filed 29 April 2021 at [42] - [44].

[22] Applicant's Submissions dated 12 May 2021, [22].

[23] Applicant's Submissions dated 12 May 2021, [28].

[24] Multiplex Constructions Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2018] QIRC 116 [27]; MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235 [40].

[25] Multiplex Constructions Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2018] QIRC 116 [31]; MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235 [49].

[26] Applicant's Submissions dated 12 May 2021, [34].

[27] Respondent's Submissions dated 12 May 2021, [15].

[28] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 695.