274 IR 317
Hamod v State of New South Wales [2011] NSWCA 375
Kirk v Industrial Court of New South Wales [2010] HCA 1
Visscher v SafeWork NSW [2021] NSWIRComm 1087
SafeWork NSW v Visscher (No 3)
Source
Original judgment source is linked above.
Catchwords
239 CLR 27
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22230 CLR 89
Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002274 IR 317
Hamod v State of New South Wales [2011] NSWCA 375
Kirk v Industrial Court of New South Wales [2010] HCA 1Visscher v SafeWork NSW [2021] NSWIRComm 1087
SafeWork NSW v Visscher (No 3)
Judgment (13 paragraphs)
[1]
nt)
SafeWork NSW (Respondent)
Representation: Counsel:
N Read (Respondent)
Solicitors:
E Derrig (Department of Customer Service) (Respondent)
Other:
Applicant (Self-represented)
File Number(s): 2021/00012730
Publication restriction: Nil
[2]
DECISION
Relevant Statutory Provisions
A History of the Dispute
Mr Visscher's Case
The Evidence
The Events of and after 7 December 2020 - As Agreed and as Found
Consideration
Part 1 - Could s 195 of the WHS Act apply to the building site and to Mr Visscher
Part 2 - Did Inspector Fripp hold the requisite reasonable belief?
Outcome
[3]
DECISION
On the morning of 7 December 2020, the Applicant, Mr Timothy Visscher, an owner-builder, was working on his partially built house in Catherine Hill Bay when an inspector from SafeWork NSW (SafeWork) arrived. After inspecting the property and speaking with Mr Visscher, Inspector Warren Fripp issued Mr Visscher with a Prohibition Notice under s 195 of the Work Health and Safety Act 2011 (NSW) (WHS Act).
Inspector Fripp formed the view that the scaffolding that had been erected at the front of the house posed a serious risk to the health and safety of workers or other persons, as there was no system in place to prevent a person falling approximately 3 - 4 metres from the upper level of the scaffolding to the ground. Inspector Fripp considered that the risk was likely to contravene s 19 of the WHS Act and reg 78 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation).
The Prohibition Notice requires Mr Visscher to stop working on the scaffolding or upper-level balcony until an inspector is satisfied that the identified risk has been remedied. It is an offence to contravene a prohibition notice: s 197 of the WHS Act. The Prohibition Notice includes mandatory directions on the measures to be taken to remedy "the risk, activities or matters or the contravention or likely contravention".
Mr Visscher took umbrage at having been issued with the Prohibition Notice, essentially for three reasons. First, he considers that as an owner-builder and the only person who had worked on the site for some months and as the only person who would be working at the site for at least six months, he was not subject to any provisions of the WHS Act. Secondly, he contends that the Inspector could not reasonably believe that an activity may occur that, if it occurred, would involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, inter alia, because the scaffold was 'isolated'. Thirdly, he believed that his neighbour, with whom he was in dispute over the boundary fence, had reported him to SafeWork NSW, not out of a genuine concern for safety, but rather, to cause him delay and harm. Notably, in the proceeding before me, Mr Visscher did not contend that Inspector Fripp's assessment of the state of the scaffold was wrong, that is, that it lacked railings to prevent a person falling and he did not dispute that someone could be seriously injured if they fell from the scaffold. He did however dispute the Inspector's assessment of the height of the scaffold, and as already noted, he contended that the scaffold was effectively isolated.
Mr Visscher decided to challenge the Prohibition Notice, rather than comply with the directions and get the prohibition on work lifted. The ability of civilians to challenge commands issued by persons with ostensible official power over them is critical to the fair functioning of a civil and liberal society. On one view it is understandable that Mr Visscher regarded Inspector Fripp's visit and the issue of the Prohibition Notice to be entirely unwarranted, precipitated he believed, by a disaffected neighbour and he was entirely within his rights to challenge the validity of the notice. At the time of the Inspector's visit he was working entirely alone, building a house for himself, his wife and his young children. In his mind, if anyone was going to be injured due to the state of his scaffold, it would be him, and that would be his business and no one else's. Unfortunately, for the reasons explained in this decision, Mr Visscher's challenge to the Prohibition Notice was misguided, with the result that his house has stood unfinished for over three years.
[4]
Relevant Statutory Provisions
Before setting out the reasons why Mr Visscher's challenge to the Prohibition Notice fails, it is important that I explain why it has taken over three years for this matter to reach a resolution and the relevance of earlier decisions related to this proceeding. To aid comprehension of that discussion and of my decision which follows, it is helpful to set out the relevant statutory provisions.
As already noted, the Prohibition Notice was issued pursuant to s 195 of the WHS Act. That provision provides:
195 Power to issue prohibition notice
(1) This section applies if an inspector reasonably believes that -
(a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or
(b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
(2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.
(3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.
Application of s 195(1) immediately focuses attention on the meaning of 'workplace'. Workplace is defined in s 8 as follows:
8 Meaning of "workplace"
(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
(2) In this section, place includes -
(a) a vehicle, vessel, aircraft or other mobile structure, and
(b) any waters and any installation on land, on the bed of any waters or floating on any waters.
The terms "business", "undertaking" and "work" are not defined in the WHS Act. The meaning of these terms is a central plank of Mr Visscher's case. The term "worker" is however defined, in s 7, as follows:
7 Meaning of "worker"
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as -
(a) an employee, or
(b) a contractor or subcontractor, or
(c) an employee of a contractor or subcontractor, or
(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking, or
(e) an outworker, or
(f) an apprentice or trainee, or
(g) a student gaining work experience, or
(h) a volunteer, or
(i) a person of a prescribed class.
(2) For the purposes of this Act, a police officer is -
(a) a worker, and
(b) at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer, but not otherwise.
(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.
Note -
A person may be both a worker, within the meaning of this section, and a person conducting a business or undertaking within the meaning of section 5.
[5]
A History of the Dispute
A significant part of the following account of the history of the dispute has been copied from the accurate and succinct précis provided by his Honour Justice Garling in Visscher v SafeWork NSW (No.2) [2022] NSWSC 1253, being one of seven published decisions concerning this dispute.
On 14 December 2020, a week after being issued with the Prohibition Notice, Mr Visscher made an application to SafeWork, pursuant to s 224 of the WHS Act, for an internal review of the Inspector's decision to issue the Prohibition Notice. On 24 December 2020, the internal reviewer, Jim Allison, affirmed the Inspector's decision (Internal Review Decision). The reasons for decision provided to Mr Visscher referred to the fact that the Inspector had attended the site "in response to a Request for Service (RFS)1-425075, confirming a report of unsafe work at height and a scaffold having fallen and damaged a wall and fence due to high winds." Mr Visscher suspected that this report (Report) (also referred to in the evidence as a 'WSMS Report') had been made by his neighbour.
On 11 January 2021, Mr Visscher commenced this proceeding by filing an Application for Review of SafeWork NSW Internal Review pursuant to s 229 of the WHS Act. On 21 January 2021 Mr Visscher filed an Application for Leave to amend his Application for Review. On 3 February 2021 the Registrar made an order the effect of which was grant Mr Visscher's application. There is no dispute between the parties that the operative originating process is the Amended Application which was attached to the Application for Leave filed on 3 February 2021 (Amended Application for Review).
I provide more information as to the content of the Amended Application for Review below. For present purposes I simply note that while the Amended Application for Review appeared to seek both a review of "a reviewable decision of the regulator", namely the issue of the Prohibition Notice by the Inspector (which pursuant to s 229(2)(b) of the WHS Act, would have been out of time), as well as, more correctly, a review of the Internal Review Decision, SafeWork raised no issue regarding the form of the application or the date on which it was filed. The parties otherwise correctly both approached the application as a review of the merits of the original reviewable decision rather than a review directed to the identification and correction of error in the Internal Review Decision, although the Internal Review Decision may be relevant and should be accorded appropriate weight: NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 at [70] (Kite AJ), c.f. Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009 (Newall C) and Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002; 274 IR 317 at [36] (Chief Commissioner Kite SC). Nevertheless, noting that Mr Visscher was out of time to apply for an external review of the initial reviewable decision, pursuant to s 229(4) of the WHS Act, the proper order upon completion of the external review is to confirm, vary or revoke the Internal Review Decision.
[6]
Mr Visscher's Case
The Amended Application for Review made the following claims:
"1) The Internal Review dated 24/12/2020, done by SafeWork NSW ('the IR'), erred by not asking the right questions, namely, 1 question of law and 4 questions of fact.
2) By not asking the right questions the IR exceeded its jurisdiction and unlawfully confirmed an Inspector's decision to Issue Prohibition Notice No; 7-326-NILAN9 ('the PN').
3) Issuing the PN is:
a) an abuse of power;
b) an improper exercise of power.
4) With regard to the PN, the Applicant is not captured by or subject to any provisions of the Work Health and Safety Act 2011 (NSW) ('the WHS Act');
5) The 'Speak Up' complaint in WSMS RFS Report 1-425075 was made for an improper purpose.
6) With regard to the PN and the purposes of the WHS Act, the Inspector made inferences of material facts that are arbitrary, capricious or unreasonable.
7) Relief sought: the Industrial Relations Commission ('the IRC') find as follows:
a) Issuing the PN is wrong in law and ultra vires;
b) The PN is vid ab initio;
c) Within the meaning of s 5 of the WHS Act, the Applicant is not a person conducting a business or undertaking ('PCBU')."
The claims were supported by the following "grounds":
"1) Question of law:
For the purposes of s 5 of the WHS Act, in circumstances of a person building his home as his principal place of residence, initially doing so as a 'person conducting a business or undertaking' by contracting with others for excavation, plumbing, electrical, concreting and other works; the question of law is as follows: -
Is an individual person a 'person conducting a business or undertaking' after ceasing to conduct any business or undertaking for 574 days whilst building his home, solo and in isolation?
2) If the answer to the question in 1) above is negative:
a) the PN is void ab initio, it has no standing in law; and
b) the IR has no jurisdiction to review the decision to issue the PN.
3) The IR did not ask the question in 1) above. It thereby exceeded its jurisdiction.
4) Questions of Fact:
With regard to all the circumstances surrounding the issuing of the PN, there are 4 questions of fact that go to jurisdiction. Those questions are:
a) Is the Applicant a 'person conducting a business or undertaking' within the meaning of ss 5 and 19 of the WHS Act and cl 78 of the Work Health and Safety Regulations 2017 (NSW) ('WHS Regs')? and;
b) Is the Applicant a 'worker' within the meaning of s 7 of the WHS Act? and;
c) Is the 'Site location' as set out on the face of the PN, a 'workplace' within the meaning of ss 8 and 195 of the WHS Act? and;
d) Within the meaning of s 195 of the WHS Act, did the Inspector reasonably believe:
i) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard? or
ii) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard?
If the answer to any of the questions in 4) is negative; that is, if the answer to question a) or b) or c); or the questions d) i) and d) ii) is negative, the Inspector has no jurisdictional power to issue the PN.
5) The IR did not ask the questions in 4) above. It thereby exceeded its jurisdiction.
6) Within the meaning of s 195 of the WHS Act the mandatory pre-requisite requirements for the exercise of the power to issue the PN have not been met.
7) With regard to all the circumstances surrounding the issuing of the PN:
a) The Applicant is not a PCBU;
b) the Applicant is not a management representative of a PCBU;
c) the Applicant is not operating as a Principal Contractor;
d) the Applicant is not a 'worker';
e) the building site is not a 'workplace'.
8) With regard to all the circumstances surrounding the issuing of the PN;
a) the Inspector states, to the effect, on the face of the PN and or his report number I 0-117005 that:
i) the Applicant is a management representative of a PCBU;
ii) the Applicant is a PCBU;
iii) the Applicant advised the Inspector that he is operating as a Principal Contractor.
b) The 3 elements in a) above are false and misleading.
9) The Inspector exceeded his power by deeming:
a) the Applicant a PCBU:
b) the Applicant a management representative for a PCBU.
He unlawfully conferred power upon himself to issue the PN.
10) The Inspector improperly inferred the following material facts:
a) the Applicant is a PCBU; and
b) the Applicant is a management representative for a PCBU.
He misconstrued the provisions of the WHS Act and erroneously conferred power upon himself to issue the PN.
11) The Inspector erred by failing to take into account the dexterity, on-site experience and accomplishments and qualifications of the Applicant.
12) The Inspector erred by taking into account the 'Speak Up' complaint (re: WSMS RFS Report 1-425075) for the reasons propounded in 16) below.
13) The Inspector did not take into account as to when, and how the scaffold is intended to be used; accordingly, issuing the PN is unreasonable.
14) The dominant reason for issuing the PN is to harass and visit harm and strife upon the Applicant.
15) The Inspector issued the PN in the course of 'acting under dictation' by complying with the policies of Safe Work NSW; delivering prepared and scripted text onto enabling parts of formal documents.
16) The 'Speak Up' complaint re: WSMS RFS Report 1-425075, against the Applicant, is vexatious, disingenuous and lodged for the dominant purpose of harassment and causing harm and strife to the Applicant.
17) The Inspector did not reasonably believe the 'Speak Up' complaint against the Applicant raised the necessary concerns about safety to justify his intervention.
18) The Inspector did not reasonably believe the 'Details of serious risk:' as set out on the face of the PN.
19) The Inspector did not reasonably believe the 'Basis for inspector's belief:' as set out on the face of the PN.
20) The intention of the Parliament and the WHS Act is to:
a) exclude persons from its provisions that perform private or domestic activities:
b) disallow persons that perform private or domestic activities being considered a PCBU.
The Applicant is such an excluded and disallowed person.
[7]
The Evidence
Mr Visscher's evidence, following argument and in some cases rulings, consisted of the following:
1. Statement of Timothy Visscher dated 21 April 2021 including annexures save that paragraph [113] is to be regarded as a submission, not evidence (Exhibit A1);
2. Statement of Timothy Visscher dated 23 August 2023 including annexures except: paragraphs [15] - [19] and [37] - [60]; second sentence of paragraph [63]; paragraph [64] to be regarded as a submission only; paragraphs [65] - [103]; Annexures N - HH and Annexure LL (Exhibit A2);
3. Chronology - Joint Memorandum of Issues and Facts Agreed or Disputed (Exhibit A3);
4. Statement of Timothy Visscher dated 27 September 2023, except paragraphs [15] - [12] and Annexures 1A - 1C (Exhibit A4);
5. SafeWork NSW documents - 'Second scaffold safety blitz following substandard scaffold safety" (Exhibit A5); and
6. WSMS RFS Report -1 - 425075 (Exhibit A6).
Mr Visscher was cross examined. I consider he gave his evidence honestly and relatively straightforwardly.
SafeWork's evidence consisted of the following:
1. Application for Internal Review dated 14 December 2020 (Exhibit R1);
2. Internal Review outcome letter dated 24 December 202 (Exhibit R2); and
3. Affidavit of Warren Fripp dated 18 September 2023 and annexures, save that paragraphs [16], the second sentence of paragraph [21], [22], [23], [26], [27], [28] and [37] were admitted for their non-hearsay purpose only.
Inspector Fripp was cross examined. He also gave evidence honestly. While he became confused at times due the way Mr Visscher put questions to him, he clearly did his best to answer the questions as directly as he could. He was extremely dispassionate when giving evidence and, as I discuss below, freely answered some questions in a way which were against the interests of SafeWork. This resulted in my having a good deal of faith in Inspector Fripp's account of the events of 7 December 2020 and his stated reasons as to why he had issued the Prohibition Notice.
[8]
The Events of and after 7 December 2020 - As Agreed and as Found
There is no debate that Mr Visscher obtained development approval for the proposed building at Catherine Hill Bay on the basis that he would be an 'owner-builder' and that he intended to have work done to build the house by others, as well as himself. [2] The estimated costs of the building works at the time Mr Visscher submitted his development application was $315,000, which meant that, under the Home Building Act 1989 (NSW), Part 3, Div 3, Mr Visscher was required to obtain a owner-builder permit. Applicants for such a permit have to complete a prerequisite training course, which includes a component dealing with work, health and safety. Mr Visscher had undertaken the course and had obtained an owner-builder permit.
Exhibit A3, was a document titled "Joint Memorandum of Issues and Facts Agreed or Disputed - Hearing, Judicial Review Application - 21 March 2023". Self-evidently it was a document prepared for the judicial review heard ultimately heard by Schmidt AJ. The document identified facts which were agreed and those which were not. Neither party sought to resile from their previous acceptance of certain facts. I indicate in the following account of the events of 7 December 2023, which facts have been formally agreed by the parties.
It is agreed that:
1. on 7 December 2020, SafeWork received a complaint from a member of the public by 'Speak Up app' No. SUP-0712-116091;
2. a 'Speak Up app' is an online application whereby one can report matters directly to SafeWork NSW by 'smart phone' or computer;
3. the said 'Speak Up app' complaint concerned the Plaintiff's building site at Catherine Hill Bay, NSW;
4. the written part of the complaint comprised these words, and only these words:
"This is a site that is an owner builder. His scaffolding has fallen down in high winds as the site is 400 mts from the beach. Scaffolding has fallen down on next-door neighbours garage and damaged the render. The fence has fallen down as well."
1. photographs were attached to the said complaint.
According to Inspector Fripp, and I accept, on 7 December 2020 he received a notification via email, referred to as "Request for Service 1 -425075" pursuant to which he was directed to attend the site. Inspector Fripp reviewed the Request for Service, which included the photographs which had been submitted with the complaint/Report, on his SafeWork issued Samsung tablet.
[9]
Part 1 - Could s 195 of the WHS Act apply to the building site and to Mr Visscher
Mr Visscher contends that he is not PCBU. During his visit to the site, Inspector Fripp asserted that Mr Visscher was a PCBU and it seems that the Inspector regarded this as a foundational jurisdictional requirement. In fact, that is not strictly the case when it comes to prohibition notices issued under s 195.
As the Full Bench observed in the Full Bench Decision at [46]:
"[Section 195] does not require that the recipient of a prohibition notice be a PCBU. To paraphrase the provision, it empowers an inspector to issue a prohibition notice to a "person who has control over [an] activity" where the inspector reasonably believes that:
1. the activity is occurring, or may occur, at a workplace; and
2. the activity involves, will involve or would if it occurs involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard."
As the Full Bench also identified (at [47]), whether the Inspector was empowered to issue a prohibition notice to Mr Visscher at all (assuming he held the requisite belief) depends on whether activity was taking place, or may take place, at a workplace. As I recorded at [8] above, "workplace" is defined in s 8 of the WHS Act as being a "a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work." The use of the word "includes" in s 8 indicates that the definition of 'workplace' is to be construed non-exclusively. Thus, while a place where a worker goes, or is likely be, while at work, will be a workplace, other places may also be a workplace, even if the place is not one, where a worker (being a term defined in s 7), goes, or is likely to be, while at work. As a matter of theory at least, a place may exist where work is carried out for a business or undertaking, but where no 'worker' within the meaning of s 7 ever goes. Such a place could nevertheless be a workplace where an activity could take place which could involve a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard, such that the person who has control over the activity could be issued with a prohibition notice.
If Mr Visscher is a PCBU, he may also be a worker due to s 7(3) which expressly provides that the PCBU is also a worker if the person is an individual who carries out work in that business or undertaking. If he is a worker the site will be a workplace and the Inspector had the power to issue the Prohibition Notice, provided the other prerequisites were satisfied.
[10]
Part 2 - Did Inspector Fripp hold the requisite reasonable belief?
The second part of Mr Visscher's case can be dealt with reasonably succinctly.
Section 195 only applies and an Inspector can therefore only issue a direction prohibiting the carrying on of an activity, if the inspector reasonably believes that an activity of the kind described in s 195(1) (a) or (b) is occurring or may occur.
There is no debate between the parties that the test of reasonable belief is objective. It requires the existence of facts which are sufficient to induce the state of mind in a reasonable person and the objects of the WHS Act inform the determination of what is reasonable: Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002; 274 IR 317 at [55] - [61].
I set out at [71] the reasons why Mr Visscher contended that the Inspector could not have formed the required objectively reasonable belief. I accept that some of the matters of fact to which Mr Visscher referred are made out on the evidence, however they are not sufficient to overcome the Inspector's evidence that he formed the belief:
1. "that an activity was likely to occur at the site that involved a serious risk to the health and safety of one or more persons [and] that the serious risk would emanate from an immediate exposure to a hazard of the non-compliant scaffold, which was incapable of preventing a fall"; and
2. "that [the scaffold] was likely to be used in the future because the house was under construction and the scaffolding was at the front of the house and it was there for a purpose, to build the house".
The fact that the house was under construction is incontrovertible. At some point, in circumstances where there is no suggestion that the construction had been abandoned, indeed the evidence is that Mr Visscher was working on the construction at the time of the Inspector's visit, work would necessarily be done toward completing the construction. In circumstances where a scaffold was erected at the front of the house, which could be easily accessed, it was entirely reasonable for the Inspector to form the view that an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
The reasonableness of the Inspector's belief, formed before he issued the oral direction, is borne out by subsequent events. After issuing the oral direction, Mr Visscher informed him that he had intended to use the scaffold to clean up the adhesive drips on the underside of the decking he had installed on the balcony. This information did not form part of the factual foundation of the Inspector's belief, but it entirely supports a finding that the Inspector's belief, formed by his observation of a defective scaffold in front of a partially complete house, was indeed reasonable.
[11]
Outcome
Mr Visscher has not succeeded in establishing that Inspector Fripp did not have the power to issue him with a prohibition notice. Mr Visscher's construction site at Catherine Hill Bay is a workplace within the meaning of s 195, by reason of the fact that it is a place where work is carried out for an undertaking. The Inspector formed a reasonable belief, based on the objectively established facts, that an activity may occur at the workplace, naming working on the scaffolding or the upper level balcony to complete a partially completed residential building, that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, namely the risk of falling from the scaffold as there is no system in place to prevent a person falling from the upper level of the scaffolding to the ground. The reasonableness of that belief is borne out by the subsequent admission by Mr Visscher that he had intended to clean the underside of the balcony, and the only way he could do that was by accessing the scaffold.
In the circumstances the external review must be dismissed. Pursuant to s 229(4) I confirm the internal review decision of Jim Allison dated 24 December 2020 which confirmed the decision of Inspector Fripp to issue the Prohibition Notice. The internal reviewer was correct in holding that "[a]n owner builder is engaged in an "undertaking" which in this matter is the construction of a residence" and that s 195 was engaged. He was also correct in determining that Mr Visscher was a 'principal contractor' within the meaning of reg 293 of the WHS Regulations and that the height of the scaffold is irrelevant for the purposes of reg 78 of the WHS Regulations, however these findings were not necessary in order to determine that the Prohibition Notice issued by Inspector Fripp pursuant to s 195 of the WHS Act, was valid.
I make the following orders:
1. The external review is dismissed.
2. The internal review decision of Jim Allison dated 24 December 2020 confirming the decision of Inspector Fripp to issue the Prohibition Notice, is confirmed.
Janet McDonald
Commissioner
[12]
Endnotes
Tcpt, 2 November 2024, p 3(44) - 4(8).
Tcpt, 21 November 2023, p 26(46).
Ex R3 (Annexure A).
Tcpt, 21 November 2023, p 64(15)-(17).
Tcpt, 22 November 2023, p 33(13) - (21).
Tcpt, 21 November 2023, p 77(47) - 78(4).
Tcpt, 21 November 2023, p 78(45) - (47).
Tcpt, 21 November 2023, p 79(14) - (17).
Tcpt, 22 November 2023, p 30(23) - (24).
Tcpt, 22 November 2023, p 32(42)-(44).
Annexure 'JJ' to Exhibit A2.
Tcpt, 21 November 2023, p 71(19).
Tcpt, 22 November 2023, p 13(31) - (44).
Tcpt, 22 November 2023, p 18(5)-(11).
Tcpt, 22 November 2023, p 26(27) - (30).
Tcpt, 22 November 2023, p 26(32) - 938).
Tcpt, 22 November 2023, p 27(35)-(39).
New South Wales, Parliamentary Debates, Legislative Council, 11 May 2011, 666 (G Pearce, Minister for Finance and Services and Minister for the Illawarra) ('Work Health and Safety Bill 2011 Second Reading Speech').
[13]
Amendments
29 February 2024 - [1] - Removed comma after "Inspector Warrant Fripp".
[24] - After third "Internal Review" the word has been amended from "Division" to "Decision".
[31] - Removed space in citation - between "NSWIR" and "Comm".
[64] - Inserted "RS" after "submission at [4] of the".
[76] - Inserted "in" after "faith", in the last sentence.
[84] - Removed comma after first "was".
[125] - Amended 'Health' to a capital (in the title of the Bill) and amended the word "regarded" straight after that to "regards"
[130] - Amended the word "exclude" to "excluded".
[131] - Removed the second "that" in first line.
[133] - Inserted the word 'of' after first reference to 'supply'.
[141] - Quotation mark inserted after 'undertaking'.
[148] - Removed "the" before "Safework" at the end of first sentence; inserted the word "the" before for the word "estimated" in second sentence and inserted comma after "more" in third sentence.
[162] - Amended "extend" in second sentence to "extends".
04 March 2024 - Correction made to Counsel's name from "N.Reed" to "N Read".
19 March 2024 - [162] - Inserted "be" after "it would not" in the first sentence, and amended the word "exposure" to "expose".
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: 19 March 2024
The term "person conducting a business or undertaking" (PCBU) is defined in s 5 of the WHS Act as follows:
5 Meaning of "person conducting a business or undertaking"
(1) For the purposes of this Act, a person conducts a business or undertaking -
(a) whether the person conducts the business or undertaking alone or with others, and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.
(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.
(5) An elected member of a local authority does not in that capacity conduct a business or undertaking.
(6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.
(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act.
(8) In this section, volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.
Note -
A person may be both a person conducting a business or undertaking, within the meaning of this section, and a worker within the meaning of section 7.
Section 196 of the WHS Act sets out the contents of a prohibition notice:
196 Contents of prohibition notice
(1) A prohibition notice must state -
(a) that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief, and
(b) briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk, and
(c) the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity.
(2) A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention referred to in subsection (1) (c).
(3) Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following -
(a) a workplace, or part of a workplace, at which the activity is not to be carried out,
(b) anything that is not to be used in connection with the activity,
(c) any procedure that is not to be followed in connection with the activity.
It strikes me as a little odd that s 196(1)(c) requires an inspector to state in a prohibition notice the provision of the WHS Act that the inspector believes is being, or is likely to be, contravened by the stated activity, in circumstances where there is no requirement in s 195 for an inspector to form such a belief before issuing a prohibition direction pursuant to s 195(2). Section 195 stands in contradistinction to the issue of an improvement notice under s 191 of the WHS Act, which does require an inspector to reasonably believe that a person is contravening or has contravened a provision of the Act. This superfluous statutory requirement may have caused, or contributed, to Mr Visscher challenging the Prohibition Notice in this case, as he disputed the Inspector's assertion in the Prohibition Notice that activity may occur at the building site that was likely to contravene s 19 of the WHS Act. This is not a matter that I need to decide.
Section 197 of the WHS Act sets out the ramifications of non-compliance with a prohibition notice:
197 Compliance with prohibition notice
The person to whom a direction is given under section 195 (2) or a prohibition notice is issued must comply with the direction or notice.
Maximum penalty -
(a) in the case of an individual - 1,155 penalty units, or
(b) in the case of a body corporate - 5,770 penalty units.
As explained at [100] below, the Prohibition Notice issued to Mr Visscher referred to s 19 of the WHS Act and regs 78 and 79 of the WHS Regulation. Section 19 sets out the primary duty of care of a person conducting a business or undertaking. It provides:
19 Primary duty of care
(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 -
(a) the provision and maintenance of a work environment without risks to health and safety, and
(b) the provision and maintenance of safe plant and structures, and
(c) the provision and maintenance of safe systems of work, and
(d) the safe use, handling, and storage of plant, structures and substances, and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and
(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, and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
(4) If -
(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and
(b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available,
the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.
(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.
Note -
A self-employed person is also a person conducting a business or undertaking for the purposes of this section.
Regulations 78 and 79 of the WHS Regulations provide:
78 Management of risk of fall
(1) A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.
Note -
WHS Act - section 19 (see clause 9).
(2) Subclause (1) includes the risk of a fall -
(a) in or on an elevated workplace from which a person could fall, or
(b) in the vicinity of an opening through which a person could fall, or
(c) in the vicinity of an edge over which a person could fall, or
(d) on a surface through which a person could fall, or
(e) in any other place from which a person could fall.
(3) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that any work that involves the risk of a fall to which subclause (1) applies is carried out on the ground or on a solid construction.
Maximum penalty -
(a) in the case of an individual - 70 penalty units, or
(b) in the case of a body corporate - 345 penalty units.
(4) A person conducting a business or undertaking must provide safe means of access to and exit from -
(a) the workplace, and
(b) any area within the workplace referred to in subclause (2).
Maximum penalty -
(a) in the case of an individual - 70 penalty units, or
(b) in the case of a body corporate - 345 penalty units.
(5) In this clause, solid construction means an area that has -
(a) a surface that is structurally capable of supporting all persons and things that may be located or placed on it, and
(b) barriers around its perimeter and any openings to prevent a fall, and
(c) an even and readily negotiable surface and gradient, and
(d) a safe means of entry and exit.
Both parties made reference to regs 289, 292, 293 and 297 of the WHS Regulation. They provide:
289 Meaning of "construction work"
(1) In this Chapter, construction work means any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure.
(2) Without limiting subclause (1), construction work includes the following -
(a) any installation or testing carried out in connection with an activity referred to in subclause (1),
(b) the removal from the workplace of any product or waste resulting from demolition,
(c) the prefabrication or testing of elements, at a place specifically established for the construction work, for use in construction work,
(d) the assembly of prefabricated elements to form a structure, or the disassembly of prefabricated elements forming part of a structure,
(e) the installation, testing or maintenance of an essential service in relation to a structure,
(f) any work connected with an excavation,
(g) any work connected with any preparatory work or site preparation (including landscaping as part of site preparation) carried out in connection with an activity referred to in subclause (1),
(h) an activity referred to in subclause (1), that is carried out on, under or near water, including work on buoys and obstructions to navigation.
(3) In this Chapter, construction work does not include any of the following -
(a) the manufacture of plant,
(b) the prefabrication of elements, other than at a place specifically established for the construction work, for use in construction work,
(c) the construction or assembly of a structure that once constructed or assembled is intended to be transported to another place,
(d) testing, maintenance or repair work of a minor nature carried out in connection with a structure,
(e) mining activities or petroleum activities.
…
292 Meaning of "construction project"
In this Chapter, a construction project is a project that involves construction work where the cost of the construction work is $250,000 or more.
293 Meaning of "principal contractor"
(1) In this Chapter, a person conducting a business or undertaking that commissions a construction project is, subject to this clause, the principal contractor for the project.
(2) If the person referred to in subclause (1) engages another person conducting a business or undertaking as principal contractor for the construction project and authorises the person to have management or control of the workplace and to discharge the duties of a principal contractor under this Chapter, the person so engaged is the principal contractor for the project.
(3) If the owner of residential premises is an individual who directly or indirectly engages a person conducting a business or undertaking to undertake a construction project in relation to the premises, the person so engaged is the principal contractor for the project if the person has management or control of the workplace.
(4) A construction project has only one principal contractor at any specific time.
Note -
A person with management or control of a workplace must comply with section 20 of the Act.
…
297 Management of risks to health and safety
A person conducting a business or undertaking must manage risks associated with the carrying out of construction work in accordance with Part 3.1.
Note -
WHS Act - section 19 (see clause 9).
Lastly, reference is made in my reasons below to ss 3 and Part 12 of the WHS Act. Section 3 sets out the object of the Act:
3 Object
(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 specified types of substances or plant, and
(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and
(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and
(d) promoting the provision of advice, information, education and training in relation to work health and safety, and
(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and
(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and
(g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and
(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.
(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 specified types of substances or plant as is reasonably practicable.
Part 12 sets out the regime by which certain decisions made under the WHS Act may be reviewed. The first section in the Part, s 223, prescribes the decisions that may be reviewed and who may apply for a review. There is no dispute that the decision to issue Mr Visscher with a Prohibition Notice under s 195 is a 'reviewable decision' within the meaning of s 223(1) and that Mr Visscher, as the person to whom the Prohibition Notice was issued, was and is an 'eligible person', entitled to seek an internal and then an external review of Inspector Fripp's decision to issue the Prohibition Notice.
It not necessary to set out the sections in Division 2 of Part 12 which provide the regime for an internal review of a reviewable decision.
Section 229 is the sole provision within Division 3 of Part 12 - External Review. It provides:
229 Application for external review
(1) An eligible person may apply to the Industrial Relations Commission for 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) The application must be made -
(a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or
(b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or
(c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.
(3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review.
(4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.
On 8 February 2021, Mr Visscher issued, with leave, a Notice to Produce to SafeWork, which required the production of all documents relating to the Report and the Prohibition Notice. On 11 February 2021, SafeWork produced documents to the Commission, some of which were partly redacted to avoid the disclosure of the identity of the person who made the Report.
On 12 February 2021, Mr Visscher filed a Notice of Motion by which he sought orders which required the production of the same documents, but without redactions. SafeWork objected to the orders sought on the basis of a claim for public interest immunity.
Following argument on 7 April 2021, Commissioner Murphy made orders which required SafeWork to produce the documents with some of the redactions removed. Commissioner Murphy accepted - and it was not in issue between the parties - that public interest immunity could attach to documents so as to protect the identity of people who report safety concerns to SafeWork. Commissioner Murphy then determined that certain passages did not in fact tend to disclose the reporting individual's identity or, alternatively, even if the information may assist in the identification of that person, Mr Visscher's interest in having access to the information outweighed the public interest in preventing disclosure of it.
On 28 April 2021, SafeWork, pursuant to ss 187 and 188 of the Industrial Relations Act 1996 (NSW) (IR Act) filed an Application for Leave to Appeal and Appeal from Commissioner Murphy's decision. Mr Visscher filed an Application for Leave to Cross-Appeal and Cross-Appeal pursuant to the same provisions of the IR Act on 12 May 2021. Mr Visscher simultaneously filed a document titled "Notice of Contentions".
On 24 May 2021, with leave having been granted on 20 May 2021, SafeWork filed an Amended Application for Leave to Appeal and Appeal. On 1 July 2021 Commissioner Sloan, on delegation from the Full Bench, dismissed an application brought by SafeWork to adduce fresh evidence on appeal, the details of which are not relevant for present purposes: SafeWork NSW v Visscher [2021] NSWIRComm 1051.
The appeal and cross-appeal were heard by the Full Bench on 10 September 2021 and 29 November 2021. On 12 November 2021 Commissioner Sloan, on delegation from the Full Bench, set aside a Summons to Produce which Mr Visscher had caused to be issued to the Secretary of the Department of Customer Service: SafeWork NSW v Visscher (No 2); Visscher v SafeWork NSW [2021] NSWIRComm 1087.
On 17 December 2021, the Full Bench gave its decision in relation to SafeWork's appeal and the plaintiff's cross-appeal in SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 (Full Bench Decision) and made the following orders:
In respect of the Appeal:
(1) leave to appeal is granted;
(2) the Appeal is upheld in so far as it challenges the decision of Murphy C to order the production of the Photographs without redaction;
(3) the decision of Murphy C to order the production of the Photographs without redaction is quashed; and
(4) the Appeal is otherwise dismissed.
[142] In respect of the Cross-Appeal:
(1) leave to cross-appeal is granted; and
(2) the Cross-Appeal is dismissed.
It is not necessary for present purposes to discuss the Full Bench Decision, save for in respect of one aspect. As Justice Garling explained in Visscher v SafeWork NSW (No.2) (the details of which I discuss further below):
15. The Full Bench first dealt with a challenge to its jurisdiction said to have been raised by the plaintiff in his cross-appeal. The plaintiff contended - for the first time in the proceedings before the Full Bench - that because he was not a "person conducting a business or undertaking" within the meaning of s 5 of the WHS Act at the time the Prohibition Notice was issued, the WHS Act did not bind him in any way, including insofar as the Full Bench had the power to hear and determine the appeal, because the proceedings in the Commission were null and void.
…
17. … the Full Bench then determined, as a matter of mixed fact and law, that the construction of the plaintiff's house was an "undertaking", that the plaintiff's property was a "workplace" and that, therefore, the Inspector had the power to issue the Prohibition Notice.
18. Notwithstanding those conclusions, the Full Bench acknowledged that the question as to whether the Prohibition Notice was properly issued was a question to be decided by a single Commissioner in the substantive hearing of the external review of the matter, which is yet to occur.
19. The Full Bench seems to have made the findings with respect to the Prohibition Notice on the basis that such findings of fact were necessary in order for the Commission (and therefore the Full Bench) to be seized of jurisdiction to hear the application for leave to appeal, the appeal (if leave be granted), and the cross-appeal. On that basis the Full Bench seems to have treated these as jurisdictional facts.
20. This analysis seemingly makes no reference to any of the statutory provisions in the WHS Act or the IR Act referred to above [s 229 of the WHS Act and/or ss 187 and 188 of the IR Act] which provide an abundant source of jurisdiction in the Full Bench to hear and dispose of the matter before it.
Thus, it may be observed that the Full Bench expressed views as to key parts of Mr Visscher's ongoing challenge to the Prohibition Notice. This included, at [30], that Mr Visscher was not a 'worker' within the meaning of s 7(1) of the WHS Act. However, as I will now explain, those views are not binding on me, although they are views to which I have had regard.
Section 179(1) of the IR Act prevents appeals against a decision of the Commission. However, the Commission's decisions are subject to the supervisory jurisdiction of the Supreme Court of New South and relief may be granted if jurisdictional error is demonstrated: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [100] - [102]. On 3 February 2022 Mr Visscher filed a Summons in the Supreme Court of New South Wales seeking judicial review of the Full Bench Decision pursuant to s 69 of the Supreme Court Act 1970 (NSW), (Supreme Court Proceeding). In the words of Justice Garling (at [32] of Visscher v SafeWork NSW (No.2)), Mr Visscher:
" … essentially challenge[d], by assertions of jurisdictional error, the Full Bench's decision:
(1) regarding its jurisdiction to hear the appeal and, more fundamentally, the application of the WHS Act to [Mr Visscher];
(2) that the photographs are subject to public interest immunity and need not be produced to the plaintiff; and
(3) dismissing the cross-appeal and refusing to order the production of all documents in unredacted form.
On 8 March 2022, Mr Visscher filed a Notice of Motion in the Supreme Court Proceeding seeking orders, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), for the decision of separate questions and for the referral of those questions to the Court of Appeal.
On 15 March 2022, SafeWork filed two Notices of Motion seeking summary dismissal of Mr Visscher's Summons and, separately, his Notice of Motion filed on 8 March 2022. Both of SafeWork's motions sought relief pursuant to r 13.4 of the UCPR.
All three Motions were heard on 6 July 2022. On that day Justice Garling first dismissed Mr Visscher's motion: Visscher v SafeWork NSW [2022] NSWSC 908. Consequently, SafeWork conceded that its Notice of Motion seeking orders summarily dismissing Mr Visscher's Motion ought be dismissed and his Honour duly made that order. His Honour also dismissed SafeWork's motion seeking summary dismissal of Mr Visscher's Summons, finding that Mr Visscher's contentions were arguable: Visscher v SafeWork NSW (No.2) [2022] NSWSC 1253.
At [49] of his judgment in Visscher v SafeWork NSW (No.2), Justice Garling made the following observation:
The consideration of this application commenced by noting that the plaintiff is acting for himself, does not have any legal qualifications and, accordingly, is entitled to some latitude when considering the precision of the contents of the Summons and his submissions.
I note in passing that I afforded Mr Visscher the same latitude in respect of the contents of his Amended Application for Review and during the hearing I was more active than I might otherwise have been in assisting Mr Visscher to present his case, to ensure that he did not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented (see Hamod v State of New South Wales [2011] NSWCA 375 at 309 (Beazley JA, as her Excellency then was). However, Mr Visscher was an extremely effective advocate in his own cause. His ability to grasp the applicable legal concepts, to prosecute an arguable case that he was not subject to the provisions of the WHS Act and to cross examine the respondent's witness reasonably effectively, was admirable.
In March 2023 Mr Visscher filed an Amended Summons in the Supreme Court Proceeding seeking orders including:
1. that the Full Bench's decision that it had jurisdiction to hear and determine the matter be quashed; that the disputed Prohibition Notice was void ab initio; that the Commission proceedings were a nullity; that he was not a person conducting a business or undertaking within the meaning of the WHS Act; and an order that the Full Bench determine the matter according to law;
2. that the decision in relation to the redaction of the photographs be quashed; that the documents produced were not protected by public interest immunity; and that the Commissioner of the New South Wales Police Force investigate alleged breaches of s 314 of the Crimes Act 1900 (NSW); and
3. that the dismissal of his cross-appeal be quashed and a declaration that the unredacted documents must be produced.
The Supreme Court Proceeding was heard on 21-22 March 2023 by her Honour Acting Justice Schmidt. On 31 March 2023 her Honour dismissed the Amended Summons: Visscher v SafeWork NSW (No 3) [2023] NSWSC 317 (Supreme Court Decision).
It is not necessary for me to canvas the entirety of the Supreme Court Decision, however, her Honour's rulings in respect of grounds 4 and 5 relied upon by Mr Visscher to support the relief he sought in his Amended Summons are significant in the proceeding before me. Those grounds were expressed as follows:
"Ground 4 - The Full Bench fell into jurisdictional error by irrational or illogical reasoning in its finding of jurisdictional fact that the building site was a "workplace" within the meaning of s 8 of the Work Health and Safety Act.
Ground 5 - The Full Bench fell into jurisdictional error by irrational or illogical reasoning in its finding of jurisdictional fact that the "undertaking" was the construction project itself."
In summary, her Honour found:
1. that at the time the Prohibition Notice was issued:
1. Mr Visscher was a 'worker' within the meaning of s 7(3) of the WHS Act; and
2. that the building site at Mr Visscher's property was an 'undertaking' and hence a 'workplace; within the meaning of s 8 of the WHS Act;
1. (at [121] and [127]) that, in circumstances where there was "no issue that a fall from a height which a scaffold was incapable of preventing, because of the way in which it had been erected, could amount to …a hazard [of the kind referred to in s 195(1)]", and on Mr Visscher's own case he was working on the balcony when the Inspector attended, the Full Bench was correct in its conclusion that the Commission had jurisdiction to entertain both Mr Visscher's review application and the appeal and cross appeal: "Section 195 was concerned with Mr Visscher's exposure to that hazard, as well as that of others who might work on this building site from time to time."; and
2. the definitions of "construction work" in reg 289(1) and "construction project" in reg 292 of the WHS Regulation did not alter her view that the Commission had jurisdiction and hence the Full Bench had not fallen into jurisdictional error.
Mr Visscher filed a Summons for Leave to Appeal from the Supreme Court Decision in the Court of Appeal (Court of Appeal Proceeding). The application was heard by Meagher and Gleeson JJA on 12 July 2023. On 17 July 2023 the Court refused leave to appeal: Visscher v SafeWork NSW [2023] NSWCA 164. The reasons for refusing leave were:
1. (at [12]), the interlocutory decision of the Full Bench was not likely to be relevant to the determination of the issues in Mr Visscher's underlying application for external review given that the redacted photos were not taken into account in the Inspector's decision to issue the Prohibition Notice, which was based on his examination of the site and his subsequent conversation with Mr Visscher, such there was no question of public importance arising;
2. (at [13]), it was not reasonably clear that Schmidt AJ's decision was wrong, in particular in concluding that there was a "real public interest" in maintaining the confidentiality of the person responsible for the report leading to the issue of the Prohibition Notice, given that such disclosure could discourage potential informers; and
3. (at [14]), the application had "already consumed substantial resources of the Commission, this Court and the parties, and has no doubt delayed the determination of the underlying proceedings which concern the validity of a prohibition notice issued in relation to the remediation of deficiencies in scaffolding on a residential property. The interests of justice as between the parties and the public interest in having proceedings concerning the safety of a worksite determined expeditiously, and without the incurring of further unnecessary and disproportionate legal costs, demand that Mr Visscher's summons for leave to appeal be dismissed."
The Court of Appeal addressed a further matter, in part to explain why it had determined to make no order as to costs in respect of Mr Visscher's unsuccessful application for leave to appeal. It is this matter which explains why the views expressed by the Full Bench and Schmidt AJ in respect of arguments upon which Mr Visscher continues to rely in this proceeding are obiter dicta, and therefore of no authority as precedent.
The Court of Appeal made the following remarks after determining that Mr Visscher's Summons for Leave to Appeal should be dismissed:
16. In his cross-appeal before the Full Bench, Mr Visscher argued that, as he was not in December 2020 a "person conducting a business or undertaking" at his residential property within s 5 of the WHS Act, that "place" could not be a "workplace" within s 8(1). It followed according to this argument that any activity occurring there was not "at a workplace" within s 195(1)(a). On that basis Mr Visscher contended that the works which he was then conducting were not subject to the WHS Act. Mr Visscher described this argument as raising "a question of jurisdiction" for the Full Bench.
17. More accurately, it raised a question as to the valid exercise of the inspector's power to give a direction under s 195(2) prohibiting the carrying out of the relevant activity, which was to be confirmed by a prohibition notice issued under s 195(3). That question properly arises in Mr Visscher's "external review" application. However, the outcome of that question could not raise any doubt as to Mr Visscher's entitlement, as the person to whom the notice was issued, to have the "decision" of the inspector to issue the notice reviewed under s 224; and his entitlement, in the event of an adverse decision, to pursue an external review before the Commission.
18. Nor could that argument raise any doubt as to the Commission's jurisdiction to conduct an external review of that decision and to "confirm, vary or revoke the decision concerned" (WHS Act, s 229(4)). Under s 146(1)(e) of the IR Act, the functions conferred on the Commission include those "conferred on it by this or any other Act or law". That jurisdiction was not dependent upon the inspector having made a valid or lawful "decision". Nor did Mr Visscher's status as an "eligible person" depend on whether he was engaged "at a workplace" when the relevant decision was made (WHS Act, ss 195(1), 224). He was and remains a "person to whom" such a notice "was issued", irrespective of whether that notice was invalid or of no effect (WHS Act, s 223 item 9).
19. Equally, the question as to the validity or otherwise of the prohibition notice had nothing whatsoever to do with the jurisdiction of the Full Bench. That jurisdiction was to hear SafeWork's appeal from Commissioner Murphy's interlocutory orders made in proceedings which engaged the Commission's jurisdiction conferred by WHS Act, s 229(4) and IR Act, s 146(1)(e).
…
23. In so proceeding [to consider the question of jurisdiction], the Full Bench considered an issue which was not properly raised in the appeal or required by any correct consideration of its jurisdiction conferred by ss 187 and 188 of the IR Act. In Visscher v SafeWork NSW (No 2) [2022] NSWSC 1253 at [54]-[57], Garling J made tentative observations to the same effect in the course of addressing a notice of motion seeking summary dismissal of the judicial review proceeding.
24. ... SafeWork accepted before this Court that to the extent such matters had been dealt with by the Full Bench, they were to be treated as obiter and not binding as between the parties in relation to that external review.
25. In the judicial review proceedings before the primary judge, Mr Visscher maintained his argument that the Commission did not have jurisdiction to hear his application for external review. Her Honour noted that this "jurisdictional" question had been raised (J[7(1)], [18(2)]) and dealt with aspects of it at J[84]-[88] and J[105]-[121], concluding by reference to the applicability of the WHS Act that "the Full Bench was correct in its conclusion that the Commission had jurisdiction" (J[121]). Her Honour had earlier observed that the so-called jurisdictional question had not been raised before Commissioner Murphy (J[50]). Her Honour then observed (J[51]), correctly in our view, that the Full Bench was not, by reason of Mr Visscher's argument as to jurisdiction, "entitled to embark on the hearing of the merits of his review application". To the extent that her Honour engaged with issues remaining to be dealt with in the external review, SafeWork again accepted that her findings were to be treated as obiter.
While the views of the Full Bench and of Schmidt AJ which bear upon the questions I need to decide in this matter are obiter dicta, I accept the submission of SafeWork that, in the absence of any contrary authority or even obiter to the contrary, the views are of considerable persuasive value. Indeed as "seriously considered dicta" of a superior court, I ought to follow the conclusions of Schmidt AJ: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134], [158].
On 26 July 2023, following the dismissal of Mr Visscher's Summons for Leave to Appeal, the matter was listed before me for directions. On that day I made directions to have the matter heard on 21 and 22 November 2023.
On 2 October 2023 Mr Visscher applied, by correspondence, for leave to issue a Summons to Attend and to Give Evidence and to Produce addressed to Ms Amanda Jones, a person who it transpires, was previously employed by SafeWork as a 'triage officer'. I indicated to the parties, via an email sent to the parties by the Registry, that I was inclined not to grant leave to the issue of the proposed Summons, but I was prepared to grant leave for Mr Visscher to have issued a Summons to Give Evidence only, addressed to Ms Jones, on the basis that her evidence, as I understood it at that time, could be relevant to the question of whether the Inspector held a reasonable belief of the kind described in s 195 of the WHS Act.
SafeWork opposed the granting of leave for the following reasons:
1. The issue sought to be raised/contended by Mr Visscher is not relevant to any issue in dispute in these proceedings. The issue of an alleged alteration of SafeWork NSW internal documents (SpeakUp records, WSMS records, or otherwise) and/or allegations of "being set up" are not raised in Mr Visscher's Amended Application for External Review filed on 21 January 2021. Leave has not been granted for Mr Visscher to file an amended application;
2. The issue sought to be raised is irrelevant given that the reason for the issue of the Prohibition Notice was Inspector Fripp's observations at the site and his discussion with the applicant (see affidavit of Warrant Fripp affirmed 18 September 2023 at [29]);
3. SafeWork NSW has filed and served an affidavit of Mr Fripp dated 18 September 2023. SafeWork NSW will rely upon this affidavit at the hearing on 21 - 22 November 2023. If leave is granted for Mr Visscher to raise this issue, Mr Visscher may seek leave to cross-examine Mr Fripp about this matter (see Mr Visscher's letter of 2 October 2023, page 3);
4. The granting of leave will result in additional time and delay in finalising these proceedings. Granting leave is not consistent with the Commission's objects to resolve industrial disputes in a prompt and fair manner and with a minimum of legal technicality, and to act as quickly as practicable (ss 3, 163 Industrial Relations Act 1996).
On 4 October 2023 I arranged for the parties to be sent an email which acknowledged the parties' correspondence with respect to Mr Visscher's application for leave to issue a Summons to Ms Jones and which advised:
Ms Jones was a 'Triage Officer' employed by the respondent and it appears had some involvement with the complaint received from a member of the public via the Speak UP app, and the WSMS report on the day the complaint was received, that is, 7 December 2020. By virtue of that involvement it is anticipated she may be able to give evidence regarding the form and content of the complaint, the creation of the WSMS report arising from the complaint, the 'Hazard Coding' initially recorded on the WSMS report and in particular whether any amendment was made to the WSMS report after the inspection by Inspector Fripp the following day. Such evidence may have a bearing upon whether the Inspector held a reasonable belief of the kind described in s 195 of the Work Health and Safety Act 2011 (NSW). Prima facie, therefore such evidence would be relevant to the matters raised at paragraphs 4(d), 5, 6, 12, 14, 16, 17, 18 and 19 of the Amended Application for Review.
However, Commissioner McDonald notes Ms Derrig's statement in her email of this morning, on behalf of the Respondent, that "the reason for the issue of the Prohibition Notice was Inspector Fripp's observations at the site and his discussion with the applicant." This is consistent with paragraph [29] of Inspector's Fripp's affidavit of 18 September 2023. Commissioner McDonald also notes that in paragraph [56] of the Respondent's Outline of Submissions dated 19 September 2023 it is submitted that the alleged alteration of the Speak UP complaint "is irrelevant given that the reasons for the issue of the Prohibition Notice was Inspector Fripp's observations at the site and his discussion with the applicant."
At paragraph [21] of the Applicant's Outline of Submission by the Applicant in Reply the Applicant states:
"SafeWork's case, which I hold it to, is that the Inspector issued the Prohibition Notice solely on the basis of what he had observed…."
In light of the Respondent's evidence and submissions, the Commission will not permit the Respondent to rely on the complaint received from a member of the public as recorded in the WSMS Report and as received via the Speak UPP app, or a via any other means, or any material recording any information concerning such complaint, to satisfy the Commission that Inspector Fripp held a reasonably belief as required by s 195. In other words, the Respondent will only be permitted to rely on the matters set out at paragraphs [54(b)] - [54(e)], but not the matter set out at [54(a)] of the Respondent's Outline of Submissions (if made out in the evidence), as the objective circumstances supporting the existence of the requisite reasonable belief and the reasons for the issue of the Prohibition Notice.
Thus, at the hearing, any evidence relating to the complaint will be excluded or its use limited on the basis of relevance. For instance, paragraph [2] of Inspector Fripp's affidavit of 18 September 2023 will either be excluded or limited to evidence of a communication made to Inspector Fripp, to provide context to Inspector Fripp's visit to the site. It will not be admitted as to the truth of the matters asserted in the complaint. That said, it may be that the Applicant will be permitted to adduce evidence from Inspector Fripp in cross examination regarding the complaint and the WSMS report, if the evidence could substantially effect the assessment of the credibility of Inspector Fripp, as permitted by s 103 of the Evidence Act 1995 (NSW).
In the premises Ms Jones' evidence would not be probative of any fact in issue in the proceeding. This being the case Commissioner McDonald does not propose to grant leave to the Applicant to have the proposed Summons issued.
If either party disagrees with any of the above they may apply, by no later than 10.00am on 5 October 2023, to have the matter listed for argument. If such an application is made the matter will likely be listed at 10.00am on Friday 6 October 2023.
No party indicated their disagreement with the above or applied to have the matter listed for argument. Importantly, SafeWork confirmed in writing that it was "content with the Commission's approach."
On 26 October 2023 Mr Visscher filed a Notice of Motion in the proceeding seeking referral, pursuant to s 178A of the IR Act, of two questions to the Court of Appeal, namely:
Question 1. Within the meaning of s 5 of the Work Health and Safety Act 2011 [NSW], what is the statutory construction of the words 'conducting' and 'undertaking' in the phrase: "person conduction (sic) a business or undertaking"
Question 2. Whether an individual building a family dwelling on his or her own land, working solo and without the participation or presence of others, is a "person conducting a business or undertaking" within the meaning of s 5 of the Work Health and Safety Act 2022 [NSW]?
The motion was returned before me on 2 November 2023. It became apparent from my exchanges with Mr Visscher, (during which I explained that the hearing of his motion would necessarily delay the hearing of his review), that he was concerned, it seems as a result of misunderstanding what the Court of Appeal had said at the conclusion of its decision, that I did not have the power to determine the questions that he wanted referred, or at least, that I would be bound by the decisions of the Full Bench and the Supreme Court. I explained to Mr Visscher that I could decide those questions:
"…as part of my function in determining your external review application I can absolutely make a decision about whether I consider a person in your position and on the facts of your matter to be conducting a business or undertaking and whether you're a worker or not. I absolutely have the power and the jurisdiction to do that.
And I would deliver a decision with my interpretation, and currently, despite remarks made about how those provisions might be interpreted by both the Full Bench and by her Honour Justice Schmidt, I am not bound to follow those decisions because they're not the ratio of those decisions, for various technical reasons, they're just not. Certainly, it's something I would take into account, they're what I would call a persuasive authority because they're obiter, so the[y are] remarks outside of the actual decision that they made, that actually determined the matters before them, but it's certainly not something binding. So, I can come at it afresh, albeit that I would have regard to what they had to say." [1]
I also drew Mr Visscher's attention to s 175 of the IR Act which makes plain that the Commission has power to determine any question concerning the interpretation, application or operation of any relevant law or instrument for the purpose of exercising its functions in connection with a matter before it. Following our exchanges Mr Visscher opted to withdraw his Notice of Motion.
On 23 August 2023 Mr Visscher filed an Outline of Submissions (AS), which distilled Mr Visscher's arguments into three parts:
"a. The FIRST PART: whether the Applicant was a PCBU within the meaning of s 5 of the WHS Act.
b. The SECOND PART: whether an Inspector held a reasonable belief under s 195(1) of the WHS Act.
c. The THIRD PART: SafeWork did alter a complaint of 'scaffolding falling on a next-door neighbours garage', to one of 'working from height with unsafe scaffolding' and thereafter attempting to 'set-up' the Applicant (myself) for disobeying a Prohibition Notice, an offence contrary to s 197 of the WHS Act."
The Respondent in its Outline of Submissions filed on 20 September 2023 (RS) objected to Mr Visscher being permitted to raise the argument set out in Part 3 of the AS on the basis that it had not been raised in the Amended Application for Review. While Mr Visscher had raised a complaint about the Report in the Amended Application for Review, and alleged that it had been made vexatiously, disingenuously and for the dominant person of harassing and causing harm and strife to him, he had not previously alleged that the Report had been altered by SafeWork or that SafeWork (as opposed to the person lodging the Report) had attempted to set him up to disobey a Prohibition Notice. In those circumstances, and where Mr Visscher had not applied to further amend his Application for Review, and had not hitherto particularised this serious allegation, I was not prepared to allow him to agitate Part 3 of his Submissions.
Otherwise, as I had indicated in my email to the parties of 4 October 2023, and as I discussed with Mr Visscher at the commencement of the hearing, the existence and content of the Report is irrelevant in circumstances where SafeWork placed no reliance upon the Report to make out its case that, pursuant to s 195, the Inspector reasonably believed that an activity may occur at the site that will involve a serious risk to the health and safety of a person emanating from an imminent exposure to a hazard.
Inspector Fripp gave the following evidence:
"As a result of my observations at the site and my discussion with Mr Visscher, I formed the belief that an activity was likely to occur at the site that involved a serious risk to the health and safety of one or more persons. I also formed the view that the serious risk would emanate from an immediate exposure to the hazard of the non-compliant scaffold, which was incapable of preventing a fall. I formed the view that the use of the scaffold would involve a risk to health and safety and that the activity was likely to contravene section 19 of the Work Health and Safety Act 2011 and Clause 78 of the Work Health and Safety Regulation 2011."
The stated foundation of the Inspector's belief was his observations and his discussion with Mr Visscher. No reliance was placed on the Report. While Mr Visscher established in cross examination that Inspector Fripp had read the Report prior to attending the site and had referred to the photographs that had been included with the Report to inform him of the issues he may have needed to consider when he attended the site, there was no evidence that the content of either the Report or the photographs included with the Report formed any part of Inspector Fripp's belief that an activity may occur at the workplace which, if it occurred, would involve a serious risk to the health or safety of a person emanating from the immediate or imminent exposure to a hazard. Nothing was elicited in cross examination that caused me to question the evidence Inspector Fripp gave that his belief was based solely on his observations and discussions with Mr Visscher.
Mr Visscher made no submission during the hearing that related to the Report.
In relation to AS Part 1, strictly speaking, a finding that Mr Visscher was not a PCBU within the meaning of s 5 of the WHS Act would not necessarily mean that he could not be issued with a Prohibition Notice. I accept the Respondent's submission at [4] of the RS that Mr Visscher's submissions to this effect "misapprehend the requirements of s 195 of the WHS Act."
Section 195 of the WHS Act empowers an inspector to issue a Prohibition Notice to a person who has control over an activity where the Inspector reasonably believes that: (1) the activity is occurring, or may occur at a workplace; and (2) the activity involves, will involve or would if it occurs involve, a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard.
The "activity" described in the Prohibition Notice was "Working on scaffolding or upper level balcony."
In the circumstances the real dispute is not whether Mr Visscher was a PCBU, but whether his building site was a "workplace". As noted above, s 8 of the WHS Act defines a "workplace" to be a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
Mr Visscher submitted that:
1. the work he was doing in building his house was not a business or an undertaking; and
2. he was not a worker within the meaning of s 7 of the WHS Act, such that the building site was not a workplace.
I consider that these submissions are broadly consistent with claims 1 - 4 and grounds 1 - 10 and 20 as set out in the Amended Application for Review.
If Mr Visscher was correct in respect of either or both of the propositions set out in paragraph [68] above, his review would have succeeded as the jurisdictional facts to enable a notice pursuant to s 195 to be issued to him would not exist and I would have varied or revoked the Internal Review Decision to provide for the revocation of the decision to issue the Prohibition Notice. However, as already foreshadowed, and for the reasons developed below, I am satisfied that Mr Visscher's construction project was an undertaking, that he was a worker within the meaning of s 7 of the WHS Act and therefore that the building site was a workplace.
In relation to AS Part 2- whether the Inspector held a reasonable belief under s 195(1) - Mr Visscher made the following submissions, which I consider are broadly consistent with claim 6 and grounds 11, 13, 18 and 19 as set out in the Amended Application for Review:
1. the Inspector did not see anyone on the balcony or the scaffold;
2. Mr Visscher did not intend to have workers on the site for at least 6 months;
3. there were no workers on the site that were exposed to a hazard;
4. the only way to access the scaffold, the absence of stairs or ladders, was to climb it on the outside, 'like a monkey';
5. if people accessed the scaffold by climbing it on the outside, like a monkey, it would not be a scaffold, it would be people being reckless, at a guess;
6. the Inspector told him that SafeWork do not really mind about owner-builders because they work at the risk; and
7. the Inspector encouraged Mr Visscher to use the scaffold after he, the Inspector, had left the site.
For the reasons set out below, and despite some of the above matters being established on the evidence, I am nevertheless satisfied that Inspector Fripp held the reasonable belief necessary to enable him to issue the Prohibition Notice.
It is agreed that on 7 December 2020 an Inspector for SafeWork visited Mr Visscher's building site in response to the said complaint/Report. According to Inspector Fripp, and I accept, he arrived at the site at around 10:50am. Upon arriving he opened his SafeWork issued Inspector's Notebook and began taking notes. I pause to record that the notes, which were tendered in evidence, are consistent with Inspector Fripp's account of the events that ensued.
According to Inspector Fripp and I accept, the first observation he made was "scaffolding erected at the front of the property which had multiple missing parts and components, including missing handrails and mid-rails." A photograph of the scaffold at the site which Inspector Fripp took was annexed to Inspector Fripp's affidavit and admitted into evidence (Site Photo). [3] The Site Photo clearly shows scaffolding erected at the front of the house in an 'L' shape, with a wooden platform positioned on the scaffold directly underneath the upper-level balcony, as well as at least one wooden plank positioned diagonally across the wooden platform under the balcony to the other side of the 'L'. Further, the Site Photo clearly shows that save for one small section on the side of the wooden platform, where there is a horizontal rail approximately 50 cm above the wooden platform, there are no horizontal railings around the wooden platform or the horizontal plank at either hip or shoulder level. It is plain, even to the untrained eye, that there was nothing to stop a person falling from the scaffolding or for that matter, the balcony. I also note that save for a small part of the outermost section of the wooden platform underneath the balcony, which Mr Visscher attested was about 100mm past the balcony structure, it would not have been possible for an adult to stand upright on the major part of the wooden platform as it was positioned too close to the balcony structure. Nevertheless, it may well have been possible to stand on the small outermost part, albeit very awkwardly and dangerously, and it would have been possible to stand fully erect and without impediment on at least half of the diagonal wooden plank.
There was some debate about exactly how high the scaffolding was from the ground. In his affidavit Inspector Fripp deposed that he estimated that the top deck of the scaffold was approximately 3 - 4 metres from the ground, however in cross examination he accepted that it might have been around 2.9 metres, that is, under 3 metres. Ultimately the exact height of the scaffolding is unimportant as Mr Visscher accepted "that if a person fell from that scaffolding as shown [in the Site Photo], there is a risk they would be injured." [4]
I understand that the reason Mr Visscher spent some time cross examining Inspector Fripp regarding the height of the scaffold was because he was concerned to establish that reg 225 of the WHS Regulations did not apply. Regulation 225 provides:
225 Scaffolds
(1) This clause applies in relation to -
(a) a suspended scaffold, and
(b) a cantilevered scaffold, and
(c) a spur scaffold, and
(d) a hung scaffold, and
(e) any other scaffold from which a person or thing could fall more than 4 metres.
(2) The person with management or control of a scaffold at a workplace must ensure that the scaffold is not used unless the person receives written confirmation from a competent person, who has inspected the scaffold, that construction of the scaffold has been completed.
Maximum penalty -
(a) in the case of an individual - 70 penalty units, or
(b) in the case of a body corporate - 345 penalty units.
(3) The person with management or control of a scaffold at a workplace must ensure that the scaffold and its supporting structure are inspected by a competent person -
(a) before use of the scaffold is resumed after an incident occurs that may reasonably be expected to affect the stability of the scaffold, and
(b) before use of the scaffold is resumed after repairs, and
(c) at least every 30 days.
Maximum penalty -
(a) in the case of an individual - 70 penalty units, or
(b) in the case of a body corporate - 345 penalty units.
(4) If an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety, the person with management or control of the scaffold must ensure that -
(a) any necessary repairs, alterations and additions are made or carried out, and
(b) the scaffold and its supporting structure are inspected again by a competent person before use of the scaffold is resumed.
Maximum penalty -
(a) in the case of an individual - 70 penalty units, or
(b) in the case of a body corporate - 345 penalty units.
(5) The person with management or control of a scaffold at a workplace must ensure that unauthorised access to the scaffold is prevented while the scaffold is incomplete or unattended.
Maximum penalty -
(a) in the case of an individual - 70 penalty units, or
(b) in the case of a body corporate - 345 penalty units.
Example -
Danger tags and other warning signs.
Mr Visscher has not been charged with contravening reg 225 and whether the scaffolding was 4 metres or more in height is not a matter I need to consider.
It is agreed that:
1. Inspector Fripp did not see anyone on the scaffolding or an upper level balcony;
2. Inspector Fripp observed that Mr Visscher was the only person on the building site;
3. Inspector Fripp did not observe any scaffolding that had fallen down.
There is no dispute between the parties that after observing the property from a distance, Inspector Fripp walked onto the property, introduced himself and the two men then had a conversation.
It is agreed that during their conversation Mr Visscher informed Inspector Fripp that it would be at least six months before others would work on the building site. However, during cross examination of Inspector Fripp by Mr Visscher, Inspector Fripp explained that:
"The reason I issued the prohibition notice was for workers or persons. So, yes, yourself, but if you tell me something, like "I'm not going to have workers on here for six months", it doesn't necessarily - it doesn't necessarily mean I believe you, because people lie to me left right and centre. Every day I go to work people lie to me. So, I formed the belief that you may engage workers because you told me to - you had. So, I formed the belief that you may engage workers who would come onsite, and they may use that scaffolding and they expose to a risk of fall. So, it covered workers and persons, yourself and other people." [5]
While not matters of formal agreement, there is no real dispute that during their conversation:
1. Inspector Fripp said to Mr Visscher words to the effect that:
1. the scaffolding was not 'compliant' and if someone was to use it they would be exposed to a risk of falling and serious injury;
2. that he had a photo of Mr Visscher standing on the scaffold not wearing a harness, but he would not show him the photo;
3. because Mr Visscher had engaged contractors to perform high risk construction work, was likely to engage more contractors on his construction site as workers in the future, and that he was operating as a principal contractor on a construction project valued at more than $250,000, he would be considered a PCBU;
4. that all Mr Visscher had to do was fix the scaffolding at the front of the property and he would be 'out of his hair'; and
1. Mr Visscher said to Inspector Fripp words to the effect that:
1. no one else uses the scaffold and when he does, he wears a harness;
2. he had used contractors to do work on the site, including concreters who had done core filling and used a scissor lift, but no one had been on the site for a long time and no one else other than him would be working on the site for months;
3. he had extensive experience in the maritime industry and always does everything safely;
4. he would fix the scaffolding and lock the gate so no one could gain access to the property.
According to Mr Visscher, and in the absence of any evidence to the contrary I accept, that the last time a contractor had worked on the site was 13 May 2019 when concrete was pumped into the block walls of the house. Prior to that following people had also worked at the site:
1. a licenced surveyor;
2. a licenced excavator;
3. licenced concreters;
4. licenced plumbers; and
5. licenced electricians.
Other workers had also attended the site to fix terminate protective strips and suppliers had delivered things to the site, including steel reinforcing bars and mesh which were delivered with the aid of cranes on trucks.
Importantly, Mr Visscher gave the following uncontroverted evidence in his statement made on 21 April 2021:
72. On about 20 September 2020, I commenced installing support floor joists for the decking on the east balcony.
…
74. In order to install the joists I used the scaffold. The scaffold was positioned right under the balcony, extending from close to the wall of the house to about 200 mm past the outer balcony support structure. The outer part of the scaffold comprised 'hop up' brackets 2 planks wide. A 'hop up' is a bracket attached to a scaffold standard (vertical pole) which supports scaffold planks.
Attached hereto marked with the letters 'AG' and 'AG1' pictures of the 'hop up'.
Attached hereto marked with the letters 'AG2' a photo of a 2 plank wide 'hop up' bracket.
75. I only used the outermost plank on the 'hop up' to stand on whilst applying adhesive for the decking at the outer edge of the balcony deck support structure. I did that work on 5th and 6th December 2020. The outer edge of the balcony structure fell plumb about 30mm from the inner edge of the outer plank on the 'hop up'. That is to say, to stand erect whilst hard up against the balcony structure I had about 200mm of the outer plank on which to stand.
I installed the outer decking from 3rd to 6th December 2020. The outer deck sheeting is 1200mm wide and it overhung the balcony structure by about 100mm.
Attached hereto marked with the letters 'AH' a picture showing the first decking sheet.
77. Whilst standing on the outer 'hop up' plank I secured myself with a 'handhold'. I did this by hooking an arm over and through the balcony support structure. In that way I secured my upper body against the balcony structure, preventing me from falling off the scaffold.
78. On the afternoon of 6 December 2020, subsequent to installing the decking over the outer edge of the balcony, there was no 'handhold'. I was not able to hook my arm over and through the balcony structure for the reason that the deck sheeting now overhung the edge of the balcony structure and blocked off the access for my arm. The 100mm deck overhang also reduced the available width of plank on which to stand from about 200mm to about 100mm. Therefore, with about 100mm of plank to stand and without a 'handhold' one couldn't stand and work on the outer plank on the 'hop up' without falling off.
…
82. On 6 December 2020, I had completed fixing the deck sheeting along outer edge of the eastern balcony and I commenced fixing sheeting to the inner part of the balcony.
83. The outer deck sheeting along the outer edge are 1200mm wide and they had been fixed. On the morning of 7 December 2020, I was working on the ground and along the inner part of the balcony, the part next to the wall of the house. Whilst on the balcony I was working 'inboard' of the edge sheeting; that is to say, I was working at least 1200mm from the edge of the balcony.
84. The position at which I was working on the balcony can be seen in my Statement, the picture attachment 'AH' at page 125. That picture shows 4 scaffold planks laying atop floor joists and 'inboard' of the decking sheet. I was working in the area of the 4 scaffold planks.
85. The work involved cutting deck sheeting to size on the ground and hauling the sheeting onto the balcony with a chain block. The chain block with a cut sheet hanging from the chain block can be seen in a photo taken by the Inspector and copied in my Statement, as attachment 'AL' at page 129.
86. On the morning of 7 December 2020, I was not working on the scaffold. No one could work on the scaffold.
On the basis of the above I conclude:
1. Mr Visscher had been working on the house on 5, 6 and 7 December 2020;
2. Mr Visscher had stood on the scaffold to do work on the building on the previous two days;
3. as a result of having installed the deck sheeting the previous day, the space available to stand on the wooden platform on the scaffolding under the balcony had reduced from around 200mm to 100mm; and
4. Mr Visscher had been able to gain access to the balcony to continue to install deck sheeting on the inner part of the balcony on 7 December 2020; and
5. Mr Visscher was working on the house when Inspector Fripp arrived.
There is no evidence however, that the matters referred to at (1) - (4) in the preceding paragraph were known to Inspector Fripp on 7 December 2020 or at any time prior to the issue of the Prohibition Notice. As I have already noted at [82] I consider that it would have been possible to stand on the 100mm of exposed wooden platform, albeit awkwardly and dangerously. I am fortified in this view by the verbal exchange the men had which I recount in paragraph [103] below.
Inspector Fripp gave the following evidence in his Affidavit, as to why he issued the Prohibition Notice:
"29. As a result of my observations at the site and my discussion with Mr Visscher, I formed the belief that an activity was likely to occur at the site that involved a serious risk to the health and safety of one or more persons. I also formed the view that the serious risk would emanate from an immediate exposure to a hazard of the non-compliant scaffold, which was incapable of preventing a fall. I formed the view that use of the scaffold would involve a risk to health and safety and that the activity was likely to contravene section 19 of the Work Health and Safety Act 2011 and Clause 78 of the Work Health and Safety Regulation 2011(sic).
30. I also relied on my training, skills and experience as an Inspector with SafeWork NSW.
31. Through the training I have been provided by SafeWork NSW, I understand the definition of a PCBU. I am aware of the document titled 'Safe Work Australia: Interpretative Guideline - Model Work Health and Safety Act; The meaning of 'person conducting a business or undertaking' ("the Guideline"), which was referred to in my Inspector Training and which I have referred to on occasions since. Annexed hereto and marked with the letter "B" is a copy of the Guideline.
32. I am also aware of, and have read, the relevant parts of, the SafeWork NSW Code of Practice Construction Work, August 2019 ("the Code") which provides practical guidance to persons conducting a business or undertaking, on how to eliminate, or if that is not possible, minimise the risks relating to construction work. Annexed hereto and marked with the letter "C" is a copy the Code. The Code, on page 39, provides a definition of a (sic) owner-builder:
A person who builds their own home will be issued with an ownerbuilder (sic) permit, license or certificate and will be considered to be a PCBU. Owner-builders have management or control of the workplace and take on the responsibility and liability that would normally fall on the principal contractor. Owner-builders must ensure, so far as is reasonably practicable, the health and safety of any workers they engage such as electricians, plumbers and gasfitters. Building laws may also impose certain requirements.
A person is not considered to be owner-builder or a PCBU if they:
- are a home buyer, owner or occupier commissioning work on their home, or
- are an individual undertaking maintenance, refurbishment or minor renovations of their own home or helping a friend."
Mr Visscher cross examined Inspector Fripp at length in respect of the 'observations' and 'discussions' that had resulted in Inspector Fripp forming the belief that an activity was likely to occur at the site that involved a serious risk to the health and safety of one or more persons. During that cross-examination Inspector Fripp explained that the following matters had informed his view:
"We had a discussion in relation to yourself acting as a principal contractor and you had engaged workers/persons/contractors in the past to do work and you explained to me that you were going to engage more persons in the future so I formed the belief out of that discussion that when you engage those people, it's likely that those people would come to site and it's likely that they could use that scaffolding. And as the scaffolding did not have any handrails or mid rails, if those workers were to use that scaffolding, they would be exposed to serious risk that could potentially cause death." [6]
…
"The fact that it was a construction site and the house was getting built. And the fact the scaffolding was there. And to complete the construction, you would need to use the scaffolding." [7]
…
"I formed the belief that it was likely to be used in the future because the house was under construction and the scaffolding was at the front of the house and it was there for a purpose, to build the house. So, any - any reasonable person would form the belief that that scaffolding is going to get used." [8]
Inspector Fripp also confirmed in cross examination that:
"The person or persons I believed to be potentially exposed to a risk would be a worker or a person, yourself [Mr Visscher] included in a worker/support." (As recorded) [9] ; and
"The reason I issued a prohibition notice was to prevent a worker or a person, so it 100% was for yourself to not go up there. But most importantly, it was so you did not expose anybody else to a risk of fall." [10]
As I have already recorded above, Inspector Fripp gave evidence that he did not necessarily believe Mr Visscher when he said that no workers would be engaged for six months, and considered that, given Mr Visscher had engaged people to work on the site in the past, he may do so again and they may use the scaffolding and be exposed to the risk of falling.
Inspector Fripp gave the following evidence in his affidavit:
"33. As a result of the belief that I formed, I advised Mr Visscher, whilst still at this site, that I would be issuing a verbal Prohibition Notice requiring that he immediately stop any work on the scaffold or upper balcony. I also advised him that I would email him a copy of the Prohibition Notice after my visit.
33.When I returned to the office, I emailed Prohibition Notice 7-326-N1LAN9 ("the Notice") and Inspection Report 10-117005 ("the Inspection Report) to Mr Visscher at tim.visscher@icloud.com, at approximately 3:06pm. I also called Mr Visscher to ensure he received the Prohibition Notice."
The Prohibition Notice relevantly read as follows:
Notice issued to:
Legal name of person/business or undertaking VISSCHER, TIMOTHY
…
Details of serious risk:
Site Location: …., CATHERINE HILL BAY, NSW, 2281
I, Warren Fripp reasonably believe on 7/12/2020 at 2:46:55PM that an activity may occur at the workplace that will involve a serious risk to the health or safety of a person emanating from an imminent exposure to a hazard and that this activity is likely to contravene, a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 78.
I direct the person with control over the following activity of: Working on Scaffolding or upper level balcony to stop the carrying on of the activity until an inspector is satisfied that the following matters that will give rise to the risk have been remedied:
Basis for inspector's belief:
Workers/Other persons may be exposed to a serious risk to their health or safety as there is no system in place to prevent a person falling approximately 3-4 metres form the upper level or scaffolding to the ground of a residential house under construction.
Directions on the measures to be taken to remedy the risk, activities or matters or the contravention or likely contravention: (It is mandatory to comply with these directions)
1. You must eliminate the risk of falls from the scaffolding, where this is not reasonably practicable you must minimise the risk of falls so far as is reasonably practicable by providing a safe system of work which complies with clause 79 of the Work Health and Safety Regulation 2017.
2. You must ensure scaffolding erected on site, is installed by a competent person and in accordance with the manufacturers (sic) recommendations.
OR
Dismantle scaffolding onsite by a competent person.
3. When this direction has been completed contact the Inspector who issued this notice who will determine compliance.
Recommendations (if any): (it is not an offence not to comply with these recommendations)
In complying with the direction, you may give consideration to further guidance available from:
- SafeWork NSW codes of practice 'Managing the risk of falls at workplaces', 'Preventing falls in housing construction', 'Construction work'.
Issuing Inspector:
…
I pause to record that Mr Visscher made no challenge to the form and content of the Prohibition Notice. I also note that the Prohibition Notice was issued on the basis that s 195(1)(b) applied rather than s 195(1)(a), that is the Inspector reasonably believed an activity may occur at workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, not that an activity is occurring at a workplace that involves or will involve such risk.
It seems that very shortly after Inspector Fripp issued an oral direction to Mr Visscher to stop any work on the scaffold or upper balcony, Mr Visscher began recording the discussions between himself and the Inspector. An agreed transcript of that recording was tendered in evidence by Mr Visscher. [11] I discuss below two aspects of what is recorded in the transcript, however ultimately nothing recorded is determinative of the outcome in this matter.
The agreed transcript of the recorded part of the conversation reveals that Mr Visscher told the Inspector, shortly after he commenced the recording, that his 'last job' was to clean up some adhesive which had dripped from the left side of the decking overlapping the front edge of the balcony. It is clear from what was said that, but for the issue of the direction not to work on the scaffolding or balcony, Mr Visscher had intended to undertake that work on that day or very shortly thereafter, and he proposed to use the scaffold to do it:
Fripp: Basically, it [the prohibition notice] says you are not to use this scaffolding unless you can provide me with evidence that it's safe to use. So, its built by a competent person.
Visscher: So, if I'm using the scaffolding wearing a safety harness?
Fripp: Safety harnesses make it a whole lot worse as well, you need to have a way to rescue yourself, and if you're by yourself that really doesn't work because if you fall and hit your head you can't rescue yourself you can't make contact. Harnesses really … they're nice for a nice easy roof but not for a building application like this.
Visscher: OK. What's got me at twos and fours here is my last job here is to, see that edge there, I've just got to do that; that adhesive is dripping down there?
[Vissher indicated the adhesive egressing from the left side of the decking overlapping the front edge of the balcony].
Fripp: Yes.
Vissher: I've just got to clean that up and that's it.
Fripp: Yep ok.
Visscher: That's the last job I've got to do.
Fripp: Yes. Can you do it from up the top?
Visscher: No, I can't, I've got to stand, well I can't reach down and clean it ….
Fripp: That makes it difficult when you've got flooring like this, even the scaff, standing on there I would struggle to be standing like. You can see you've put the planks here to make it a bit wider.
Vissher: I might put an extra bay in here.
Fripp: Yeah, if you put an extra bay in and join it all together and put a proper handrail you'll be laughing.
Vissher: Ok, I'll do that. Because from what you're saying to me now is that the prohibition has effect from …
Fripp: Right now
Visscher: From right now. Ok. Right-oh well I'll put an extra bay there.
Inspector Fripp agreed that Mr Visscher only told him that he intended to clean up the drips of adhesive after he had issued the verbal direction not to work on the scaffold. [12] It therefore was not a matter that formed a basis for the Inspector's belief justifying the issue of the Prohibition Notice.
The second matter of some importance is that while discussing how Mr Visscher might make the scaffolding safe to do the work Mr Visscher needed to do, Inspector Fripp made remarks which appeared to undermine the direction he had given. The two men had the following exchange:
Fripp: And to be honest, whoever called up is probably just going to keep calling up if they can find an issue.
Visscher: Yes.
Fripp: And if it's high risk, like the only reason I came out today is because its working at heights.
Visscher: Yes.
Fripp: We triage things, if it was about your, I don't know, slips trips and falls whatever we wouldn't come out. It's only because it's working at heights and we have so many young people die off scaffolding, scaffolding falling over, so just for a heads up it will just keep on coming you can't fix it. Generally, people in this situation just keep complaining and then you'll probably have the council here then you'll have the EPA here. They just ring everybody.
Visscher: On and on?
Fripp: Yes, generally I rock up and they go, 'Are you the Council? Are you the EPA? And no, I'm Worksafe'. It's annoying for us because it's like … we try and look after these jobs because there's 10 15 people on the site, there's apprentices, young people. We don't really mind about owner builders because it's your own risk. The public doesn't mind if you fall off. If a young kid fell off there, the public… outcry. So, I'll send you these this arvo.
Visscher: Ok.
Fripp: It will just be a prohibition notice, do not use the scaff until you can demonstrate to me that its compliant and build by a competent person. If you can build it and it looks compliant and there's no missing parts and components, it's all good.
Visscher: Okayy, rightio.
Further, shortly before the Inspector left, the two had the following exchange:
Visscher: Ok. I'll go home now and there's a few things up there I've just gotto take down, tools and things like that.
Fripp: Yep cool, just wait' till I'm gone. Do whatever you like.
Visscher: Yes, right oh.
Fripp: You can do what you want when I'm not here.
Visscher: Yeah, if I do that there'll be someone taking my photograph.
Fripp: Yeah, fair enough, but even then, it still doesn't matter 'cause I don't know when and where the photographs were taken, it could have been taken last week.
Visscher: They are probably dated you know.
Fripp: Yeah. But we can't use them. Those photographs that we do have, I can't use them against you. I need to come and gather my own evidence.
Visscher: All right.
Fripp: So, it's no issue, look, I've got to tell you that you're not good to go. If I'm not here I don't observe it, I don't care. If you've got to get up there and finish it then get up there and finish it, I don't, I'm not really concerned. I just want you to do it right.
Visscher: Ok.
Fripp: I can't tie your hands up and make you do it.
Visscher: Ok. Figuratively this is a conversation we've not had?
Fripp: Yep. Because basically I've got everything in this document written down and I've told you you're not to do it. If you want to do it, you can do what you want.
Visscher: Then I'll put that piece of deck down, this piece of deck down, and that finished the deck.
Fripp: Yep.
Visscher: Then I'm going to not do anymore work up there even that scraping underneath.
Fripp: Cool.
I asked Inspector Fripp why he would (effectively) tell Mr Visscher he could go up on the scaffold and/or the balcony, while at the same time issue him with a prohibition notice. He answered as follows:
You're correct, when you read it like that, it, it sounds like that. So, in the gist of the conversation, I think I'd been there for probably an hour. In the initial part of the conversation, we were going around in circles trying to explain things, we were talking about if he was or if he wasn't a PCBU, he as arguing about whether - who raised the complaint, he wanted to see my tablet, he wanted to see the photo. Then we went onto the scaffolding, and then I told him how to fix it, and I tried to, if you listen to that, I tried to leave site multiple times, I was like, "Okay, mate. Fix it. I'm going to go".
By the time I got to that, from my experience, dealing with persons who are double my age, being a male, from my experience, you can't tell old people what to do. You can give them advice and guidance and say, "Yeah, do this, do this", but in my experience, they'll just do whatever they want anyway, they don't really care. And at that stage, I was just a bit over the whole thing, I was just like, "I mean, do whatever you want. I can't hold your hands; I can't tie them up and say, 'Don't do it'. I've given it to you". And I think somewhere in there I actually say, "I just want you to do it safely".
…
But to be honest, my time is far better spent somewhere else than the semantics of trying to explain to a gentleman double my age what he should and shouldn't be doing; he knows what he should be doing, and I was just a bit jack of it and I was like "See you later, mate. I don't care".
So, on paper, yeah, it does sound contrary, it doesn't sound appropriate, but I was at my limit, I was like, "Do whatever you want, buddy. I'm gone". If there was a - an apprentice and he was a builder and he was directing an apprentice to work up there and the apprentice was like "I don't want--", it'd be a whole different interaction; I would be ceasing the work, I would be issuing a $3,600 penalty notice saying, "Mate, you're not to expose workers or persons".
But if an old bloke gets on top of a scaffold and wants to build his house and fall off and die and leave his missus and his kids, no skin off my nose, and I don't even care; I tell people that all the time, I try and sell it to them. I say, "Safety is not my issue. I'm here to enforce the rules. I'm here to say, "Hey, mate. You shouldn't do this. But if you want to it and fall, that's your issue, I don't care". And that's how I generally feel, like it doesn't bother me if someone falls and dies, I just hope they don't do it because they're going to leave kids and a missus at home."
While I consider Inspector Fripp's remarks to be regrettable, given his role to ensure compliance with legislation designed to ensure health and safety, they are perhaps understandable from what might be described as a 'human' point of view for the reasons he explained. I also commend Inspector Fripp for his plainly honest response to my question. I do not consider that what Inspector Fripp said to Mr Visscher undermines the Inspector's belief as stated in the Prohibition Notice. It is also clear that Mr Visscher understood, particularly from his observation to Inspector Fripp that that part of the conversation was one they had "not had", that he understood perfectly well that he was legally obliged to comply with the Prohibition Notice and that any remarks made by the Inspector which might have a suggested that he could get away with not complying with the notice, did not remove that legal obligation.
One last matter regarding the events of 7 December 2020 requires comment. Considerable time was spent by Mr Visscher cross examining Inspector Fripp as to how access might be obtained to the platform of the scaffold in circumstances where, as the Site Photo showed and as Inspector Fripp agreed, there was no stair or ladder access to the scaffold itself. Mr Visscher's position was that the scaffolding posed no risk in circumstances where there was no stairway access to the platform, where the site itself was fenced off and where he did not intend to have other workers on the site for six months. Mr Visscher submitted that the scaffold was essentially 'isolated', consistent with the 'Hierarchy of control measures' set out in reg 36 of the WHS Regulation, as referred to in Part 1.7 of SafeWork's Code of Practice Construction Work, August 2019.
Although it was not mentioned in his affidavit, in cross examination Inspector Fripp stated that there was an internal stair allowing access to the balcony and from there one could gain access to the scaffolding. [13] He did not take a photo of this internal stair and it is not visible in the Site Photo. Mr Visscher attempted to challenge the Inspector's evidence that access to the balcony was possible from the partially completed internal staircase. Ultimately, I posed the following question to Inspector Fripp which elicited the following response:
Q: How did you know [you could walk from the top of the internal staircase to the balcony?]? Did you go inside the house, Mr Fripp?
A: Yes, I was standing in that immediate vicinity. I did not walk up that staircase 'cause it was not safe to do so. But I could see that you could make access to the balcony 'cause there was a whole lot of equipment up there. So, one would carry that equipment up there. So, one would carry that equipment up there, unless you got a crane and craned it in, so I formed the belief that you could make access. [14]
I accept that prior to issuing the verbal direction, by observing the equipment on the balcony, that the Inspector formed a belief that one way or other, access to the balcony, and from there the scaffolding, was possible. As it turns out such a belief was justified given Mr Visscher's later discussion with the Inspector about the work he had done and proposed to do on the balcony. I also accept that in arriving at his belief that access to the balcony was possible, the Inspector observed an internal stairway under construction and presumed that was the method by which access to the balcony was obtained. Whether the partially constructed stairway was in fact the method of access is not important. The Inspector formed a reasonable belief based on the equipment on the balcony that access to the balcony was possible.
Inspector Fripp otherwise did not accept that the scaffolding was 'isolated' in accordance with industry practice, as while there were no stairs, it had not been 'danger' taped off, nor was there any signage to warn a person not to use the scaffold. [15] He explained that it would be 'common right across industry' and he had seen it many times where workers would use the horizontal components of a scaffold to climb up like a ladder, even where there was no established scaffold ladder. [16] Inspector Fripp accepted, that someone choosing to access the scaffold in this way, would be making a 'reckless decision'. [17]
On 11 December 2020 Mr Visscher sent an email to Inspector Fripp attaching photographs of the scaffolding which Mr Visscher had altered, he believed sufficiently to allow the prohibition on work to be lifted. However, Inspector Fripp was not satisfied as there were still missing parts and components. In particular, there were missing top and mid rails whereby a person could fall. Inspector Fripp replied to Mr Visscher on the same day advising that he would not allow him to use the scaffold and suggesting that he engage a licenced scaffolder. Inspector Fripp also phoned Mr Visscher to further explain to him that the scaffolding should not be used as there were missing parts and components that would expose a person to a risk of fall.
On 13 December 2020 Mr Visscher sent another email to Inspector Fripp, which confirms two important facts: that he had told Inspector Fripp during his visit that he had intended to work from the scaffold to clean up the adhesive drips; and he intended to engage workers in the future, in about six months time. He also raised the argument which forms the central plank of this proceeding. The email reads as follows:
Hi Warren,
Many thks for your email.
I have not done the intended work from the scaffold.
At your visit to the site I informed you that the only work I intended to do from the scaffold was to clean up the 'under-edge' of the front part of the balcony deck and that it would only take a few hours.
I understood you to say that it would be OK to install an additional two bays of scaffold with handrails in order to do that work. I did not understand you to mean that you wanted the entire scaffolding arrangement fully enclosed. That is my mistake and I do apologise. I am happy to fully enclose the entire scaffolding arrangement, in addition to providing ladder access, and I am competent to do the work. The highest point of the working scaffold from the ground is 2.8m, say 3.0m.
I will do that work and send you a comprehensive set of photos in order for you to appraise the work and lift your prohibition.
If I may indulge you, I'd appreciate your assistance and clarification on my status under the Work Health and Safety Act 2011 (NSW) ('the WHS Act'). As you know, I am an owner-builder of a dwelling house. To date I've done all the work on-site; save for others being involved in the following:
• surveyor
• deliveries of material
• earthworks/excavation
• concrete slab and driveway
• plumbing connections for concrete slab to sewer and drainage
• electrical connections from mains to metre box
• concrete pump/core filling of wall blocks
The last time others were involved in the work, core filling, occurred on 13 May 2019 (pic attached)
The only others to visit the site have been:
• My wife, children and next door neighbour
• Engineer for inspection/testing/verification purposes
• Certifier, for verification purposes
I do intend for others to work on site at sometime in the future. I estimate that to be in about six months time.
With regard to the above, I understand you have said to me, in effect, for the purposes of the WHS Act, that you deem me to be a 'person conducting a business or undertaking'. I do accept that when I have others working on the site I will be the above-mentioned person and a cl 293 'principal contractor'; however, and with the greatest respect, I disagree that my current status is a 'person conducting a business or undertaking' for the reason that I am not a party to any agreement for others to work on site and that there is no one else working on site. To date, for the vast majority of time, and for about the next six months, I have been and will be the only person working on-site and doing so as an owner-builder. Going forward, I will keep the perimeter fence locked and deny entry to all non-essential/entitled persons.
If I'm wrong with regard to my current status, would you be so kind as to direct me to the relevant legislation and/or authority setting this out.
Best regards, Tim Visscher.
(Reproduced verbatim)
Inspector Fripp replied by email sent on 14 December 2020 as follows:
Hi Tim,
Thanks for getting in touch, once you have eliminated the risk of falls from the scaffolding please get in touch and I will attend site to confirm.
Thank you for explaining your situation as an owner builder, although my opinion that you are a PCBU still stands.
You have engaged and are likely to further engage workers / persons or contractors to perform work on your construction project.
As previously discussed, if you do not agree with any decision I make you can apply via our website or call 13 10 50 for an internal review.
I have attached the Code of Practice for Construction Work, you may find it helpful during the build. Please call me if you would like any further help or advice.
Regards.
Warren Fripp
Inspector, Construction Services Regional
As I have recorded above, on 14 December 2020 Mr Visscher made an application to SafeWork for an internal review of the Inspector's decision to issue the Prohibition Notice.
As the above factual account confirms, Mr Visscher carried out work at the site and intended to carry out further work at the site. There is no real debate about that. Rather the debate is whether that work was carried out for an undertaking. Plainly it was not work carried out for a business and SafeWork did not contend that it was. Whether the construction project upon which Mr Visscher was working at the site was an undertaking has to be determined in order to resolve both whether he was a PCBU and then whether, as a PCBU he was an 'individual who carries out work in that … undertaking' such that he is deemed to be a worker. The term 'undertaking' is not defined in the WHS Act.
Mr Visscher submitted that the work he was doing building his dwelling was not an 'undertaking' within the meaning of the ss 5 and 7. He accepted however, that when he engaged other people to work on the building he was conducting an undertaking.
Mr Visscher referred to the definition of 'undertaking' in the Macquarie Dictionary, online ed, which definition Schmidt AJ also referred to at [108] of the Supreme Court Decision:
"Undertaking" is defined in the Macquarie Dictionary, online ed, relevantly to mean "the act of someone who undertakes any task or responsibility"; (2) "a task, enterprise, etc., undertaken"; or (3) "a promise; pledge; guarantee".
Mr Visscher submitted that:
"If the word 'undertaking' were to be given its ordinary meaning in the WHS legislation, it would bring about curious results. It would mean that 'someone' (any individual) 'who undertakes any task or responsibility' will do so whilst subject to the provisions of the WHS Act and Regs."
To support that submission, Mr Visscher referred to the remarks of the Hon Greg Pearce, Minister for Finance and Services, in his second reading speech in respect of the Work Health and Safety Bill 2011 as regards the bill's use of the term 'person conducting a business or undertaking'. Those remarks included the following:
"The Work Health and Safety Bill 2011 defines the primary duty holder as a person conducting a business or undertaking. Under this more comprehensive definition, a person holding a duty includes a body corporate, an unincorporated body or a partnership. The definition applies to activities whether they are conducted alone or with others, for profit or not for profit, and with or without the engagement of workers. This provision will cover a broad range of work relationships and business structures. It does not extend to a person's private or domestic activities or to volunteer associations as they are defined in the bill. The concept of a person conducting a business or undertaking will provide greater certainty about workplace duties by removing the ambiguity that may arise, for example, between a principal contractor and subcontractors. [18]
I note that "private or domestic activities" are not expressly excluded in the WHS Act. Regulation 7 of the WHS Regulation excludes a 'strata title body corporate' and certain incorporated associations, from the definition of a PCBU, but that is the extent of the prescribed exclusions pursuant to s 5(6) of the WHS Act.
As I understand Mr Visscher's submissions, since the ordinary meaning of the word 'undertaking' could encompass 'private or domestic activities' and as this was not the legislature's intention, the word 'undertaking' must be regarded as meaning something analogous to a business, or alternatively, an activity analogous to the activity of a business. Thus, in Mr Visscher's submission, the use of the conjunction 'or' in the phrase, 'business or undertaking' is to connect alternate terms for the same concept or thing, rather than to provide alternatives. In support of this submission Mr Visscher referred to the Macquarie Dictionary, online ed, definition of "or" which provides:
conjunction a particle used: 1. to connect words, phrases, or clauses representing alternatives: to be or not to be.
2. to connect alternative terms for the same thing, or different ways of expressing the same concept: the Hawaiian or Sandwich islands.
Mr Visscher relies on the second definition of 'or'.
I agree that 'or' when used in the phrase 'business or undertaking' is not intended to be construed disjunctively, because, as Mr Visscher submitted, the activity of every business may be regarded as an undertaking, however not every undertaking will be regarded as a business. There are innumerable decisions in which Courts have referred to the business of an employer as being an 'undertaking': see e.g. Regina v Associated Octel Co Ltd [1996] 1 WLR 1543.
In my view some guidance may be obtained from the canon of construction noscitur a sociis - a thing is known by its associates. The linking of certain words may indicate that they should be understood in the same sense, or the meaning of certain words in a list of words may determine the meaning of a word which does not have a settled meaning or is capable of having a broad meaning. Thus, in Prior v Sherwood (1906) 3 CLR 1054, in the context "house, office, room or place", "place" was limited to an enclosed or definable area and excluded a public lane. More recently in Monis v The Queen (2011) 256 FLR 28 (NSWCCA) (approved in Monis v The Queen (2013) 249 CLR 92, in the context "menacing, harassing or offensive", "offensive" meant more than merely calculated to cause hurt or injury to feelings but rather calculated to cause significant anger, resentment, disgust, outrage or hatred.
In short, I agree with Mr Visscher to the extent that an undertaking must have some characteristic in common with or which makes it similar or comparable to, a business. To the extent SafeWork submitted otherwise and to the extent the Full Bench said otherwise in its obiter remarks in the Full Bench Decision, I respectfully disagree with those submissions and those remarks.
I also agree with Mr Visscher that in construing the meaning of the word 'undertaking' consideration must be given to the context in which the word is used "which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.": Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]. This involves a consideration of the objects of the WHS Act in s 3. The chapeau to s 3 states that the main object of the Act "is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces". This being the case Mr Visscher is entirely correct in submitting that:
"… the mischief to be addressed by the use of the word 'undertaking' in the legislative scheme concerns the inclusion of all persons as intended to have duties and obligations under the WHS Act whilst conducting activities falling within the object, s 3 of the WHS Act that are not strictly those of a 'business'".
Mr Visscher contended that his activities were not 'analogous' to a business because he worked at building the dwelling solo, and in isolation from others, for 574 days. He maintained that during that time he was performing private work for his family and himself and therefore he was not conducting an 'undertaking'. He submitted that he was different to an individual who might engage in a 'one-off' activity - e.g. the manufacture for sale a product that is normally manufactured by large well-established corporations or the supply of a product that is normally supplied by a well known and established company - who would nevertheless be regarded as conducting an undertaking and subject to the WHS Act, because, as I understand it, their activity, although ad hoc, was analogous to a business due to the sale or supply of a product to another person.
However, there are other ways in which an activity or enterprise might be regarded as being similar to a business. Mr Visscher referred to a decision which illustrates the point well. In Mr Martin Cooper [2017] FWC 5974 Anderson DP considered the jurisdiction of the Fair Work Commission to determine two applications for an order to stop bullying under s 789FC of the Fair Work Act 2009 (Cth) (FW Act). The claimants worked for the City of Burnside. It was contended, inter alia, that the Commission lacked the jurisdiction to hear the claims because the claimants did not work in a "constitutionally covered business" for the purposes of s 789FD(1) and in particular, the City of Burnside was not a "constitutional corporation" for the purposes of s 789FD(3) of the FW Act. Section 789FD(3) provided:
(3) If a person conducts a business or undertaking (within the meaning of the Work Health and Safety Act 2011) and either:
(a) the person is:
(i) a constitutional corporation; or
(ii) the Commonwealth; or
(iii) a Commonwealth authority; or
(iv) a body corporate incorporated in a Territory; or
(b) the business or undertaking is conducted principally in a Territory or Commonwealth place;
then the business or undertaking is a constitutionally-covered business."
The reference to the Work Health and Safety Act 2011 is a reference to the Commonwealth Act. Section 5 of that Act is identical to s 5 of the WHS Act (NSW).
Anderson DP held at [45]:
I find that the City of Burnside is established for the purposes set out in the Local Government Act 1999 (SA). Those purposes primarily concern the provision and co-ordination of public services and facilities in its geographic area and in providing a mechanism for local representative decision-making and community leadership. I further find that in performing these tasks the City of Burnside has established committees and structures provided for in the Local Government Act 1999 (SA) and has employed staff for those purposes. In these circumstances I am satisfied that it is a "business or undertaking" within the meaning of section 5 of the Work Health and Safety Act 2011 in that, irrespective of whether it has a profit making objective, it has elements of organisation, systems and continuity that would make it at least an "undertaking".
The notion "elements of organisation, systems and continuity" are indicia of an undertaking may have been picked up by Anderson DP from SafeWork Australia's "Interpretive Guideline - Model Work Health and Safety Act - The Meaning of 'Person Conducting a Business or Undertaking', initially published in 2010 (Interpretive Guideline). That document, which both parties tendered in evidence, includes the following:
What is a 'business' or 'undertaking'?
The WHS Act does not define a 'business' or 'undertaking'.
Whether a person conducts a business or undertaking is a question of fact to be determined in the circumstances of each case. The following table identifies the usual meaning of these terms:
Business → enterprises usually conducted with a view to making a profit and have a degree of organisation, system and continuity
Undertaking → may have elements of organisation, systems, and possibly continuity, but are usually not profit-making or commercial in nature
The WHS Act states that a person conducts a business or undertaking whether it is conducted alone or together with others, and whether or not it is conducted for profit or gain.
The concept of 'work' is relevant to identifying what is a business or undertaking
The duties of a PCBU are all associated with the carrying out of work. …
While the SafeWork Australia Guideline cannot override the proper construction of the legislation, it does support the view that an undertaking will share characteristics in common with a business, including organisation, systems and possibility continuity. I do not consider, nor is it suggested in the Guideline, that those are the only things that an undertaking might share in common with a business. There may be many things that indicate that a particular activity or enterprise is an undertaking by reference to the matters it shares in common with or makes it comparable to, a business. Mr Visscher identified the sale of products to third parties as an indicium that an ad hoc activity may nevertheless constitute an undertaking within the meaning of the Act, however that is only one possible scenario. Each case will turn on its own facts.
In New South Wales it is illegal to construct a dwelling without either holding a contractor licence or an owner-builder permit: ss 12 and 32 of the Home Building Act 1989 (NSW). SafeWork tendered various documents published by NSW Fair Trading regarding Owner-builders. One document headed "Owner Builder permits" has a section at the start headed "Key information" and which reads as follows:
● In NSW, you need an owner-builder permit to supervise or do work valued at over $10,000 on your own home, and you're not contracting a licensed builder to supervise the work.
● If the work is valued at more than $20,000, you also need to complete certain units of competency or have the approved equivalent qualifications and experience.
● As an owner-builder, you are responsible for the building work as a fully licensed builder would be.
…
Another Fair Trading document headed "Working as an owner-builder" contains the following section:
What are my responsibilities?
As an owner-builder, you are responsible for the building work just as a fully licensed builder would be. This includes:
● overseeing and supervising all tradespeople
● ordering materials and managing the building site
● obtaining all necessary council and authority approvals
● ensuring that the financial, taxation and insurance requirements of the building work are met and full comply with the laws
● being aware of your obligations under the Workers Compensation Act 1987 and the Work Health and Safety Act 2011 to provide a safe work environment that complies with SafeWork NSW requirements. Significant penalties may apply if you don't meet this obligation. Our dealing with hazardous materials page has more information on some possible risks, such as asbestos and lead.
● ensuring any contractor engaged is appropriately licensed and insured to do the work contracted for
● warranting that the materials and work will be fit for the purposes and result in a dwelling that can be occupied.
You can do a licence check online to verify the credentials of any tradespeople you work with, or call us on 13 32 20.
SafeWork NSW has more information about building and construction obligations and how to prevent incidents including the owner-builder animation below.
Whether these documents accurately set out the obligations of an owner-builder is unimportant. Plainly they do not substitute for the actual legislative provisions which stipulate the alleged responsibilities. What the documents do show however, are three important things:
1. an owner-builder assumes the role of a licensed builder, that is, a person who unarguably would be a PCBU, as by carrying on a trade they would be conducting a business;
2. undertaking the construction of a dwelling pursuant to an owner-builder permit involves elements of organisation and systems - to a very high degree and the legislature plainly regards it as a serious activity requiring considerable regulation; and
3. the construction of a dwelling by an owner-builder involves 'work' just as it would if a licensed builder were undertaking the task.
Given the above, it cannot be said that the construction of a dwelling is for a private or domestic purpose in the sense used in the second reading speech. This view is consistent with the approach taken by SafeWork Australia in its Interpretive Guideline under the heading 'What is not a 'business' or 'undertaking'':
Private or domestic purposes
The regulators consider that the intent of the legislation is that the following kinds of persons should not be taken to be PCBUs:
● Individuals who carry out domestic work in and around their own home (e.g. domestic chores etc).
● Individuals such as home-based foster carers who care for foster children
● Individual householders who engage persons to carry out ad hoc home maintenance and repairs or other domestic work, e.g. casual baby sitters; tradespeople to undertake repairs. It is important to note that a tradesperson will either be a worker for a business or undertaking, or a business or undertaking in their own right if the tradesperson is self-employed.
The building of a residential property is a major and important task - it is not ad hoc home maintenance or repair.
In the premises I consider that the construction of a dwelling pursuant to an owner-builder permit, whether by the permit holder doing the work themselves or by engaging and supervising others to do the work, is sufficiently similar to or comparable with, a business, or has attributes that otherwise indicate that the legislature intended that it would constitute an 'undertaking' within the meaning of ss 5 and 7 of the WHS Act.
I reject Mr Visscher's argument that when he was working on the building alone he was not an undertaking and I respectfully agree with Schmidt AJ's remarks in the Supreme Court decision at [117] - [119], which consistent with Farah Constructions Pty Ltd v Say-Dee Pty Ltd, I should follow :
117. There is nothing in the statutory scheme which would permit the conclusion which Mr Visscher urged. Namely, that at times when he did not engage others to perform work on site, he was not conducting an undertaking, not even when he was working there himself. That is both quite illogical and contrary to the scheme and its objects.
118. As the Full Bench observed, whether or not someone is conducting an undertaking is a question of fact. A dispute over such a matter must be resolved logically, in light of all the evidence. Thus if the evidence established that at the time a notice was issued the owner/builder had sold the property, without the building being completed, it is difficult to see that it could be concluded that the required undertaking was still being pursued by the owner/builder.
119. But in this case, there was no issue that Mr Visscher was still building…
Having found that the construction of the dwelling pursuant to an owner-builder permit was an 'undertaking', I also conclude that Mr Visscher was a PCBU within the meaning of s 5. For completeness I do not consider that the exclusion in s 5(4) applies as Mr Visscher was not engaged solely as a worker in, or as an officer of, the undertaking. He was more than just a worker - he was the owner of the land and the building being constructed on it and crucially, he was also the holder of the permit that enabled the work on the site to proceed.
Having found that Mr Visscher was a PCBU I also find that he is a worker pursuant to s 7(3). Mr Visscher was an individual who carried out work in the undertaking. Having found that Mr Visscher is a worker, the building site at Catherine Bay Hill was a place where Mr Visscher went while at work and any in event, was a place where work was carried out and was being carried out for an undertaking. As the place the Inspector visited was a workplace, the Inspector had the power to issue the Prohibition Notice, provided the other prerequisites were satisfied.
For completeness I agree with the observation of Schmidt AJ at [113] of the Supreme Court Decision that the Full Bench's view that Mr Visscher was not a 'worker' as he did not fall within the definition of s 7(1) of the WHS Act "did not have necessary regard to the effect of s 7(3)." As she explained at [115] and [116]:
115. Contrary to the view taken by the Full Bench, such work brought him within the statutory definition of a "worker". That is because that word is not only defined in s 7(1) of the WHS Act to include persons such as employees, contractors and subcontractors, apprentices, trainees and volunteers. Section 7 also provides that "[t]he person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking": s 7(3) of the WHS Act.
116. Mr Visscher was such a person and he thus fell within this aspect of the definition of "worker".
Lastly, as it was a matter of some contention between the parties, as I have found that Mr Visscher was and is a PCBU, it is the case that Chapter 6 of the WHS Regulation, which includes regs 289, 292, 293 and 297 will apply to Mr Visscher as alleged by SafeWork. SafeWork tendered in evidence Mr Visscher's application for development consent for the project which disclosed that the estimated costs of the works was $315,000. As the project involves construction work where the cost of the construction work is $250,000 or more, the construction is a 'construction project' within the meaning of reg 292 and Mr Visscher as the PCBU commissioning the construction project is the 'principal contractor' within the meaning of reg 293. This determination is however, posterior to the determination as to whether Mr Visscher is a PCBU. The provisions of Chapter 6 of the WHS Regulation do not assist in that anterior determination, save that they support the view that the undertaking of significant construction work is a matter that the legislature regarded as a matter requiring particular attention to ensure the health and safety of workers and workplaces. This being the case it would be wholly inconsistent with the scheme and objects of the WHS Act for owner-builders to be regarded as not conducting an undertaking when they conduct construction work themselves or at any time while the construction work continues.
Before looking more closely at the facts Mr Visscher relied upon to contend that the objective information available to the Inspector impugned the reasonableness of his belief, it is worth pausing to consider more carefully the words used in s 195(1)(b). As I stressed in [153] above, an inspector need only believe that an activity may occur that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. Section 195(1)(b) says nothing about the timing of the impugned activity. Nor does it say much about the likelihood of the impugned activity. While I consider that the likelihood of the activity must not be fanciful or improbable, the objects of the WHS Act suggest that the threshold for the formation of a belief that an activity may occur is relatively low.
The reference in s 195(1)(b) to 'an immediate or imminent exposure to a hazard' does not mean that the impugned activity needs to be immediate or imminent. The activity may occur a long way in the future, but when it does occur, it will necessarily involve a serious risk to the health or safety of a person due to the fact that they will be exposed, immediately or imminently, to the hazard. It is against this possibly that s 195(1)(b) is directed.
Mr Visscher contended that the Inspector could not form the requisite belief because he did not see anyone on the balcony or the scaffold. It is correct that Inspector Fripp only observed Mr Visscher on the ground level of the building. However, I consider that the mere existence of the scaffold at the front of a partially completed dwelling objectively indicated that the scaffold may be used in the future.
Mr Visscher contended that the Inspector could not form the requisite belief because he informed the Inspector that he did not intend to have workers on the site for at least six months. First, as I have just discussed, the impugned activity (workers accessing the defective scaffold) need not be immediate or imminent. Mr Visscher's admission that workers would be back at the site in six months confirmed that an activity may occur at the workplace, that if it occurs, will involve serious risk to the health or safety of those workers emanating from the immediate or imminent exposure to the hazardous scaffold. In any event, given the state of the construction and based on the Inspector's experience, he did not necessarily believe that workers would only return to the site in six months.
Moreover, as discussed at length above, Mr Visscher is himself a worker within the meaning of s 7(3). There is no debate that Mr Visscher was himself working on the building and the Inspector was justified in forming that view that Mr Visscher may access the scaffold and thereby be exposed to a serious risk to his health and safety.
Mr Visscher contended that no workers on the site were exposed to a hazard. At the risk of repetition, Mr Visscher was a worker and would be exposed to the hazard if he accessed the scaffold, or for that matter the balcony, as it was not protected by a suitable scaffold. It was reasonable for the Inspector to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction, and the reasonableness of his belief was subsequently borne out by Mr Visscher telling the Inspector that he had intended to clean the adhesive from the underside of the balcony and complete the installation of decking on the inner side of the balcony.
Mr Visscher contended that the only way to access the scaffold, in the absence of stairs or ladders, was to climb it on the outside, 'like a monkey'. Essentially Mr Visscher contended that the scaffold was isolated and so the impugned activity was not going to occur. I discussed this contention at [109] to [112]. I accept the Inspector's evidence that, based on his observation of equipment on the balcony, access to the balcony and from there the scaffolding, was possible. He also explained that persons could also climb the scaffolding using the horizontal pieces. He explained that to 'isolate' the scaffolding it ought to have been taped off with appropriate signage warning against any use of the scaffold.
Mr Visscher contended that if people accessed the scaffold by climbing it on the outside, like a monkey, it would not be the scaffold that would expose them to a risk, but rather it would be people being reckless. This submission ignores the many authorities that have held that the primary duty of care imposed by the WHS Act extends not only the ideal worker, but to the careless, inattentive and inadvertent worker as well: WorkCover Authority of NSW (Insp Maltby) v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35; 126 IR 1 at [285] and the authorities cited therein. The careless or negligence of an injured work may be relevant in sentencing on the issue of the culpability of the offender, but it will not usually absolve the PCBU of liability - see SafeWork v Omega International and Shetty [2016] NSWDC 11. That said, the unforeseeable conduct of a worker or other person may be relevant to the question of whether reasonably practicable measures might have been taken to eliminate or reduce the risk: see Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 and Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39. In short, the accessible defective scaffold is what would expose a person to a risk, not the actions of a person accessing the scaffold.
Mr Visscher contended that the Inspector did not form the requisite reasonable belief in circumstances where SafeWork do not really mind about owner-builders because they work at their own risk and Inspector Fripp encouraged Mr Visscher to use the scaffold after the Inspector had left the site. I do not accept that the Inspector 'encouraged' Mr Visscher to use the scaffold, but as discussed at [105] - [108] above, he did say certain things that may have given Mr Visscher the impression he could use the scaffold and work on the balcony with impunity. For the reasons I explained at [108] I do not consider that what Inspector Fripp said to Mr Visscher undermines the Inspector's belief as stated in the Prohibition Notice.
Lastly, to the extent Mr Visscher contended that the Inspector's belief was not reasonable because in the Prohibition Notice he identified that his belief was based on there being no system in place to prevent a person falling "approximately 3 -4 metres", in circumstances where the Inspector accepted that the platform of the scaffold was around 2.9 metres from the ground, I do not consider that this minor discrepancy in any way undermines the Inspector's belief. He plainly considered that the lack of the appropriate railings exposed a person to the risk of serious injury through fall. The exact height of the fall is of no consequence in circumstances where Mr Visscher accepted that if someone did fall from the scaffold they could be seriously injured. The maxim de minimus non curat lex applies: The law does not concern itself with trifles.