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  • Unreported Judgment

Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)

 

[2019] QIRC 133

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No.2) [2019] QIRC 133

PARTIES: 

Multiplex Constructions Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2018/101

PROCEEDING:

Application for external review

DELIVERED ON:

10 September 2019

HEARING DATES:

26, 27 November 2018, 22, 30 January 2019

MEMBER:

O'Connor VP

HEARD AT:

Brisbane

ORDER:

  1. The Review Decision be set aside and that the Prohibition Notice be withdrawn ab initio.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – WORK HEALTH AND SAFETY – prohibition notice – application for external review of a decision to issue a prohibition notice – reviewable decision stayed pending determination – test of reasonable belief – whether belief held by an inspector was reasonable – whether the prohibition notice contained a reasonable direction capable of being understood with certainty – objective of a prohibition notice

LEGISLATION:

Work Health and Safety Act 2011 (Qld) s 19  s 32 s 195 s 196 s 197

Work Health and Safety Regulation 2011 (Qld) s 54

CASES:

George v Rockett (1990) 170 CLR 104

APPEARANCES:

Mr C Murdoch of Queens Counsel instructed by Minter Ellison Solicitors for the Applicant 

Ms C Hartigan of Counsel, directly instructed by the Respondent

Reasons for Decision

  1. [1]
    On 31 May 2018, an inspector from Work Health and Safety Queensland (WHSQ) issued a prohibition notice under s 195 of the Work Health and Safety Act 2018 (the WHS Act) to the Applicant in these proceedings, Multiplex Constructions Pty Ltd. In issuing that notice the inspector stated that he reasonably believed 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 immediate or imminent exposure to a hazard and that this activity is likely to be contravening a provision of [the WHS Act and the Work Health and Safety Regulation 2011].

I direct the person with control over the following activity to stop the activity of: Performing construction work where it is reasonably likely that an object could fall.[1]

….

  1. [2]
    The issuing of a prohibition notice constitutes a reviewable decision.  On 12 June 2018 Multiplex filed an application with the Respondent for an internal review of the inspector's decision pursuant to s 224 of the WHS Act.
  1. [3]
    On 26 June 2018 the internal review confirmed the inspector's decision to issue the prohibition notice. 
  1. [4]
    On 20 July 2018 Multiplex filed with the Commission an application for external review. On 27 July 2018 Multiplex amended its application for external review. 
  1. [5]
    Multiplex contend that both the decision to issue the Notice and the Review Decision is incorrect and that the decision of the Respondent dated 26 June 2018 should be set aside and substituted for a decision to withdraw the Notice.
  1. [6]
    Multiplex filed an application in existing proceedings seeking interlocutory orders that the review decision and the prohibition notice be stayed pending the hearing and determination of the substantive application.
  1. [7]
    On 6 September 2018, the Commission granted the application for a stay and made the following orders:
  1. Pursuant to s 229C of the Work Health and Safety Act 2011, the internal review decision dated 26 June 2018 is stayed on the condition that the prohibition notice the subject of the review is also stayed.
  1. Pursuant to s 229C(2)(b) of the Work Health and Safety Act 2011, the stay of the internal review decision, and the prohibition notice the subject of the review, will remain in effect until the hearing and determination of the application for the external review by the Commission. 

Grounds of Review

  1. [8]
    Multiplex pursues the following grounds of review:
  1. (a)
    Ground 1 – there was no basis for the Inspector to hold a reasonable belief that Multiplex was likely to be contravening a provision of the WHS Act by the activity the subject of the Notice;
  1. (b)
    Ground 2 – The Notice does not set out how the relevant provision is likely to be being contravened;
  1. (c)
    Ground 2A – The Notice does not contain a reasonable direction capable of being understood with certainty;
  1. (d)
    Ground 3 – The directions to remedy the likely contravention are unclear and therefore incapable of being complied with; and
  1. (e)
    Ground 4 – The issue of the Notice is inconsistent with the national Compliance and Enforcement Policy.

The Legislation

  1. [9]
    Section 195 of the WHS Act sets out what a prohibition must state:

195  Power to issue prohibition notice

  1. (1)
    This section applies if an inspector reasonably believes that —
  1. (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
  1. (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.
  1. (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 stated way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.
  1. (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.

(emphasis added)  

  1. [10]
    Section 196 of the WHS Act sets out the conditions which must exist prior to the issuing of a Prohibition Notice.

196  Contents of prohibition notice

  1. (1)
    A prohibition notice must state–
  1. (a)
    that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief; and
  1. (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
  1. (c)
    the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity.
  1. (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 mentioned in subsection (1)(c).
  1. (3)
    Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a stated way may do so by specifying 1 or more of the following—
  1. (a)
    a workplace, or part of a workplace, at which the activity is not to be carried out;
  1. (b)
    anything that is not to be used in connection with the activity;
  1. (c)
    any procedure that is not to be followed in connection with the activity.
  1. [11]
    Section 197 provides that a person must comply with the prohibition notice. Section 197 provides:

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—1,000 penalty units.

Statement of Agreed Facts

  1. [12]
    This review proceeded on the basis of an agreed statement of facts. The agreed facts are:
  1. Multiplex Constructions Pty Ltd (Multiplex) is the principal contractor of the Jewel Project (Project), a three tower development which is located on Old Burleigh Road in Broadbeach.
  1. Multiplex is a person conducting a business or undertaking (PCBU) within the meaning of the Workplace Health and Safety Act 2011 (WHS Act) in relation to the Project.
  1. A WHSQ Inspector, Gregory Wheeler, issued a verbal Prohibition Notice P750114 to Multiplex on 31 May 2018 and the written notice was sent to and received by Multiplex on 5 June 2018 (Notice). Attempts were made by Inspector Wheeler to email a written prohibition notice on 1 and 4 June 2018 however these were sent to an incorrect email address.
  1. Multiplex submitted a Form 17 Application for Internal Review of the Notice on 12 June 2018.
  1. The Workers' Compensation Regulator (sic) made a review decision of 26 June 2018 and communicated details of that decision by correspondence dated 29 June 2018 under s 226 of the WHS Act, confirming the decision of Inspector Wheeler.
  1. The incident which preceded the issue of the Notice occurred at 1.35pm on 31 May 2018. The incident involved a 660mm long x 16mm diameter x 900 gram reinforcing bar which was being used as a counterweight bar, attached to the outside of the door of a hoist operated by a sub-contractor, falling outside of the hoist enclosure and outside an exclusion zone.
  1. At approximately 1.45pm Multiplex telephoned WHSQ to notify WHSQ of the incident and advised that an investigation had commenced. The investigation concluded at approximately 2.00pm.
  1. At approximately 3.00pm Inspector Wheeler attended site in relation to the incident.
  1. Prior to the Incident, WHSQ had attended the Project to conduct inspections. Multiplex had engaged with WHSQ in relation to the work health and safety procedures on the Project including:
  1. Site inspections, meetings and discussions between WHSQ representatives and Multiplex representatives from approximately May 2016;
  2. A meeting between WHSQ representatives and Multiplex representatives on 5 March 2018;
  3. A meeting (including a presentation given by WHSQ representatives) between WHSQ representatives and Multiplex representatives at the Project on 22 May 2018. 

 Background to the issuing of the Prohibition Notice

  1. [13]
    On 31 May 2018 Mr Hippocrates, who is the senior health and safety co-ordinator for Multiplex on the Gold Coast, received a phone call from Dan Humphries, a Multiplex Safety Coordinator, who advised that an object had fallen from Tower 2 of the Jewel Project. 
  1. [14]
    At approximately 1.45pm, Mr Hippocrates telephoned WHSQ and spoke to Inspector Dale Blight informing him that an object had fallen from Tower 2 and that Multiplex had commenced an investigation into the incident.
  1. [15]
    The investigation discovered that the falling object had been attached to the outside of the door of a hoist to act as a counterweight. The investigation concluded at approximately 2.00pm. As part of the investigation Mr Humphries took a number of photographs and completed an immediate site consultation incident report.
  1. [16]
    At 2:30pm Mr Hippocrates oversaw the removal of all counterweight bars from the hoist doors.
  1. [17]
    At approximately 3.00pm Mr Hippocrates met with WHSQ Inspector Greg Wheeler. Mr Hippocrates provided Inspector Wheeler with a brief description of the incident and advised him that all counterweight bars had been removed from the hoist doors. Inspector Wheeler was taken to the area of incident and he was provided with a copy of the incident report.
  1. [18]
    Inspector Wheeler's diary note of the site inspection states:

Falling object issue Tower 2 Northern Hoist 1. Reinforcing steel rod 650mm long has fallen from unknown height. At this time, the reo bar has landed on the ground floor/podium. Landed approximately 4 meters from a Bricklayer, Brett from Priest and Co Bricklayers.

It was not an exclusion zone. The Perspex panels were all removed from the hoist as the workers were complaining it was hot in the hoist. As a result of the Perspex being removed the top section of the hoist internal door slips down approximately 200mms and the bottom door raises the same counter act this. Reinforcing steep was zip tied to the bottom door to act as a counter weight to stop the top door coming down.

Site management was unaware of the modification, met Jack Cummin, Union Organiser. I took a video of another hoist, Tower 3, Northern, and I correct myself the bottom door does not protrude past the ground floor level. Not a trip hazard. Advised John that there is a verbal prohibition for falling objects.[2]

  1. [19]
    At approximately 3:40pm Inspector Wheeler advised Mr Hippocrates that WHSQ management had recommended that he issue Multiplex with a verbal prohibition notice in relation to the incident.[3] However, Inspector Wheeler did not advise WHSQ management that all of the counterweight bars had been removed from the hoist doors.
  1. [20]
    On 5 June 2018 Inspector Wheeler issued a formal written Prohibition Notice.

Grounds of Review - Consideration

  1. [21]
    The following consideration, for reasons which will become apparent, focuses primarily on grounds 1 and 2A of the Grounds of Review.
  1. [22]
    The power to issue the notice under s 195 of the WHS Act is enlivened where an inspector reasonably believes that an activity is occurring or may occur that involves a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
  1. [23]
    Section 195 is concerned with a workplace activity which is occurring or may occur and stopping or preventing the activity before it can pose a serious risk to the health or safety of a person.
  1. [24]
    An element of s 195 is the concept of control. The effect of s 195(2) and (3) enables inspectors to issue oral directions and written notices to a person who is currently in control of an activity.  Ordinarily this would be a Person Conducting a Business or Undertaking (PCBU) such as Multiplex. Because prohibition notices are designed as a response to serious risks to work health or safety, directions may be issued orally at first instance, but must be confirmed by a written notice as soon as practicable.[4]
  1. [25]
    With respect to the identified risk the Inspector must consider the risk to be serious and be associated with an immediate or imminent exposure to a hazard.[5] If the risk ceases to be a serious risk or if there is no immediate or imminent exposure then the Inspector ought not issue the Notice .
  1. [26]
    In issuing the Notice, Inspector Wheeler identified what founded his reasonable belief that an activity may occur that involved a serious risk to health or safety. Under the heading "Basis for inspector's belief" Inspector Wheeler wrote:
  1. Since project commencement in November 2016, 19 falling objects have been notified to Workplace health and Safety.
  1. The most recent being a 650mm long x 16mm diameter reinforcing bar that fell into a work area narrowly missing a worker.
  1. The project is due for completion early 2019.
  1. Objects falling are not being managed and workers are at imminent risk of serious injury.
  1. [27]
    Reasonable belief is not defined in the WHS Act. In George v Rocket & Anor the High Court had to consider what "reasonable grounds" meant in the context of whether or not a Magistrate had reasonable grounds to issue a search warrant.  In a unanimous judgment, the Court (Mason CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[6]

  1. [28]
    In his affidavit of 8 November 2019, Inspector Wheeler deposed that in forming the reasonable belief he had regard to the fact that an uncontrolled object had fallen on site that morning; there were ineffective control measures in place at height, which resulted in the object falling; the falling object did not land in an exclusion zone, meaning there were ineffective control measures employed at ground level; and, the object fell within close proximity to a worker.[7]
  1. [29]
    Inspector Wheeler also had regard to the number and ongoing nature of the falling object issues on the Jewell Project and that the fact there had been previous incidents reinforced the decision to issue the notice.[8] However, as Multiplex submitted "it does not necessarily follow that an activity within section 195(1)(b) may occur by this past history or that Multiplex was likely to contravene its obligations to manage the risk of falling objects under the WHS Act".
  1. [30]
    Prior to the Notice being issued, there were 18 previous incidents of falling objects in a period from 2 November 2016 to 31 May 2018.[9] Multiplex submitted that 15 of the 18 incidents predating the Notice involved:
  • human error (i.e. deliberate or accidental breach of procedure by workers who had been trained in the relevant Safe Work Method Statement and other procedures); and
  • involved an object falling into an exclusion zone (i.e. a control which was part of Multiplex's safety management system specifically implemented to address the risk to health and safety associated with an object falling on a person if the object is reasonably likely to injure the person);
  • did not therefore involve any imminent risk of serious injury to any person;
  • were not reportable incidents under the WHS Act because they did not meet the definition of a 'dangerous' event under section 37 of the WHS Act (because they did not expose a worker or any other person to a serious risk to a person's health or safety) and were reported to WHSQ proactively and in circumstances where they were not required to be reported.
  1. [31]
    In his affidavit of 31 July 2018 Mr Hippocrates gives reasons as to why 15 of the 18 prior incidents of falling objects did not present an imminent risk of serious injury to any person, he states:  
  1. buckets of waterproofing membrane fell into an area that had been cleared for the purpose of creating an exclusion zone.
  1. a hand tool – pinch bar fell into the crane base which had been fenced off for the purpose of creating an exclusion zone.
  1. 12mm nut fell from the top of the hoist roof into an exclusion zone.
  1. Piece of timber fell into an exclusion zone.
  1. Strip of mesh fell into an exclusion zone.
  1. z bar nut fell into an exclusion zone.
  1. z bar nut fell into an exclusion zone.
  1. Piece of rebar fell into the hoist enclosure. This is a fully enclosed area which acts as an exclusion zone.
  1. Sprinkler pipe fell into the hoist enclosure.
  1. Bundle of five PVC pipes fell into an exclusion zone.
  1. Piece of aluminium gutter splice fell into an exclusion zone.
  1. Bolt fell into an exclusion zone.
  1. Timber packer fell into an exclusion zone.
  1. Hard hat fell into an exclusion zone.
  1. Z bar nut fell into exclusion zone.[10]
  1. [32]
    Mr Hippocrates affidavit details the various control measures Multiplex implemented in response to the incidents of falling objects:  
  1. Directing subcontractors to comply with the appropriate methods for lifting materials
  1. Filling in gaps in formwork with scaff guards
  1. Adding rubber flaps to fill in small gaps under toe boards
  1. Retraining form workers in SWMS relating to assembling platforms for formwork
  1. Directing façade installers to check for proper installation of washer prior to installation of brackets
  1. Retraining form workers in SWMS to ensure proper connection of mesh
  1. Directing form workers to ensure that all checks for loose objects are completed prior to climbing containment screens
  1. Redesign and engineer certification of brackets ensuring appropriate inspections of lifting gear
  1. Updating pre-climb checklist to ensure involvement of formwork HSR and Multiplex Safety Coordinator prior to particular formwork activities taking place
  1. Installing a PVC catch pipe
  1. Taking disciplinary action against worker and reinducting worker to follow safety procedures
  1. Directing workers to not permit loose materials in hoists
  1. Appropriately securing mobile scaffolds when not inuse and directing workers not to store materials on mobile scaffolds
  1. Directing façade installers to remove splice piece prior to launching panels
  1. Welding a backup chain on to bolts
  1. Removing plywood packers and installing a Preston attachment for set downs
  1. Directing façade installers to use both chin strap and hard hat lanyard if working at slab edge.[11]
  1. [33]
    Inspector Wheeler said he was aware of the other incidents involving falling objects because as the Principle Inspector of Operations he is notified of all incident/near misses and accidents reported through the South West/ Gold Coast region. However, at no stage prior to issuing the Notice was Inspector Wheeler aware of the specific control measures which had been implemented by Multiplex after each incident.[12] Whilst Inspector Wheeler had taken into account the history of falling incidents at the Project into his decision to issue the Notice, he did not know nor did he ask about what remedial action had been taken by Multiplex to address the issue of falling objects.
  1. [34]
    In cross-examination, Inspector Wheeler accepted that in respect of the individual incidents prior to the issuing of the Notice the control measures put in place by Multiplex addressed the risk of an incident reoccurring.[13] He further accepted that in terms of the 31 May incident the control measure implemented by Multiplex addressed the risk of that incident reoccurring;[14] that Multiplex did not install the reo bars on the hoists; and that Multiplex site management were unaware that the reo bars had been attached to the hoists.[15]
  1. [35]
    Inspector Wheeler accepted that the incident on 31 May 2018 was distinct from the other falling object incidents and that because the reo bar had been removed from the hoist the matters identified in paragraph 18 of his affidavit were no longer an ongoing concern.[16]
  1. [36]
    The Respondent submits that the 31 May incident placed an individual at risk of serious injury and that such action enlivens consideration of the likely contravention of ss 19 and 32 of the WHS Act and s 54 of the WHS Regulation. The 31 May 2018 incident, was, on the Respondent's argument, an appropriate basis to issue the Notice. The Respondent argues that the likely contravention of the WHS Act and Regulations raises a basis to form a reasonable belief that there was a failure by Multiplex to manage risks to health and safety in accordance with Part 3.1 of the Regulations.
  1. [37]
    However, notwithstanding that the 31 May 2018 incident was identified as a basis for issuing the Notice, Inspector Wheeler's evidence was that the Notice was concerned about the history of falling objects at the Project which demonstrated that the control measures used by Multiplex were not effective. He went on to tell the Commission that he considered objects would continue to fall at the site. This issue was explored in cross examination:

Mr Murdoch: Therefore, what was there in addition to require the notice to be issued, that wasn't already a fact prior to 31 May?

Inspector Wheeler: Again, referring back to the notice.  It's talking about falling objects.  It's not talking about the falling reo bar incident.  It's not talking about that specific incident, it's talking about controlling falling objects.

  1. [38]
    In cross-examination, Inspector Wheeler accepted the suggestion put by Mr Murdoch QC that the notice was not issued to address an activity but rather to gain the attention of Multiplex in respect of the issue of falling objects. In cross-examination the following exchange took place:

Mr Murdoch: Now, if we go to paragraph 18 of your affidavit, you say there that:

Informing a reasonable belief necessary to issue the prohibition notice, you had regard to the following matters.

Mr Murdoch: Okay.  And you've set out those various dot points in paragraph 18.  Now, given that you've accepted that the reo bars had been removed from all of the hoists, in terms of the operation of the hoists and in terms of a reo bar falling from a hoist, none of the dot points that you've set out in paragraph 18 were an ongoing concern, were they? 

Mr Wheeler: So could you repeat the question please?

Mr Murdoch: The matters in paragraph 18 – because the reo bar had been removed from the hoist, in respect of the hoist, none of things were a concern, going forward, were they?  

Mr Wheeler: For this incident, no.

Mr Murdoch: And in terms of the prohibition notice – and I'm not – please don't think I'm patronising you, but I need to ask you this in order to go to the next set of questions I want to ask you about.  You're familiar, of course, with the terms of section 195 which deal with the issue of prohibition notices, aren't you?  

Mr Wheeler: I don't look at it every day, no.

Mr Murdoch: Well, given that – I take it – no, again, I'm not being disrespectful, but I assume that the prohibition notice of 31 May wasn't the first one that you'd issued?  

Mr Wheeler: Correct.

Mr Murdoch: Yeah. So you would need to have a -at least a working familiarity with section 195, in order to be going around considering whether to issue prohibition notices, wouldn't you?  

Mr Wheeler: Correct.

Mr Murdoch: … I just want to take you to section 195, and just have it open there for me, please. 

Mr Murdoch:    Yes.  Now, in paragraph 22 of your affidavit, you say there that:

The purpose of issuing the prohibition notice was to focus Multiplex on the issue of controlling falling objects on the dual project site, and to assist in the prevention of another falling object incident occurring for the remainder of the project.

 Could you point to where in section 195, which provides the power to issue a prohibition notice, the power is prefaced on, focussing Multiplex on the issue of controlling falling objects on the dual project site, and assisting in the prevention of another falling object incident?  

Mr Wheeler: One A.

Mr Murdoch: One A.  Right.  Okay.  Well, what part of 1A relates to focussing Multiplex on the issue of controlling falling objects, and assisting in the prevention of another falling object incident?  

Mr Wheeler: Okay:

An activity is occurring at a workplace    that involves or will involve a serious risk of the health and safety of a person, emanating from an immediate or imminent exposure to a hazard.

Mr Murdoch: Yes?

Mr Wheeler The activity is occurring, it's happening now, at the workplace that involves or will involve a serious risk.

Mr Murdoch: Okay.  Well, what was the activity that is or was occurring?  

Mr Wheeler: Well, in this case it was the operation of the hoist.

Mr Murdoch:  But, you see, the problem, of course, is that you had accepted that by the time you issued the notice you knew that the reo bar that fell, all the other reo bars had been removed.  So it wasn't a situation, was it, where there was an activity occurring?  

Mr Wheeler: You're correct in that regard.

Mr Murdoch: Look, the bottom line is, Mr Wheeler, you issued this prohibition notice because you were trying to get Multiplex's attention, weren't you?  

Mr Wheeler: Get their attention to the falling object issues on site, yes.

Mr Murdoch: That was why you issued the notice? 

Mr Wheeler: Correct.

  1. [39]
    The cross-examination demonstrates that Inspector Wheeler's rationale for issuing the Notice was to focus Multiplex's attention in respect of falling objects on the Project and that the activity the subject of the Notice and the associated risks had been ameliorated.
  1. [40]
    Whilst it might be relevant to consider the past history of falling objects at the Project for the purposes of forming a reasonable belief I accept that it does not necessarily follow that an activity within s 195(1)(b) of the WHS Act may occur as a consequence of the past history or that the obligations under the WHS Act are likely to be contravened.
  1. [41]
    Multiplex argues that the identified incidents were each dealt with in a comprehensive way. This involved Multiplex proactively identifying possible risks, establishing measures to eliminate risk and to reduce, as far as possible, further risks, and engage with WHSQ inspectors regarding site safety. It is not apparent from the evidence before the Commission that WHSQ were dissatisfied with the control measures implemented by Multiplex in response to the previous 18 incidents prior to the incident on 31 May 2018.
  1. [42]
    Mr Hippocrates evidence was that after each incident a review was undertaken by Multiplex and its subcontractors and, where appropriate, remedial measures taken to prevent a re-occurrence.[17]
  1. [43]
    There is some force in the argument advanced by Multiplex that the measures taken to deal with the previous incidents would tend to incline the mind away from the requisite belief under s 195(1)(b) of the WHS Act. I agree.
  1. [44]
    In my view, Inspector Wheeler could not have formed the necessary reasonable belief that there was a serious risk of objects falling. In coming to this conclusion, I have had regard to the fact that Inspector Wheeler accepted that the removal of the reo bars from the hoists completely ameliorated the risk of any similar event from occurring or reoccurring. Therefore, the reo bar incident could not have been used as a basis for forming a reasonable belief that there was a serious risk associated with falling objects. 
  1. [45]
    I also have had regard to the fact that Inspector Wheeler did not have any knowledge of the control measures Multiplex had implemented to address each of the prior incidents of falling objects. It must be remembered that without knowledge of what remedial steps had been taken by Multiplex to deal with the issue of falling objects it was not open for Inspector Wheeler to draw a conclusion that Multiplex had inadequate control measures and that objects would continue to fall at the site. The mere fact that Inspector Wheeler had knowledge of the history of falling objects at the Project was not enough, in and of itself, to induce a reasonable belief that there was a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
  1. [46]
    The purpose for issuing the Notice was not aimed at addressing a particular activity as envisaged by s 195(1)(b) but rather as a means of focusing Multiplex's attention on the issue of falling objects. There was no serious risk to health and safety emanating from an immediate or imminent exposure to a hazard as the matters that gave rise to any risk had been remedied.
  1. [47]
    When the evidence is considered as a whole, there is no objective basis to support a reasonable belief for the purposes of s 195 of the WHS Act.
  1. [48]
    Finally, let me turn to Ground 2A of the Grounds of Review. Multiplex contend that the Notice fails to articulate a comprehensible prohibition consistent with the trigger for the issue of a Notice under s 195(1)(b) of the WHS Act.
  1. [49]
    Central to the work of s 195 is the identification of the activity being conducted by the business or undertaking. Inspector Wheeler described the activity as the "activity of performing construction work where it is reasonably likely that an object could fall".
  1. [50]
    The wording used by Inspector Wheeler to describe the "activity" effectively recites the general statutory obligation to manage the risk of falling objects in s 54 of the WHS Regulations which relevantly provides:

A person conducting a business or undertaking at a workplace must manage risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person.

  1. [51]
    Multiplex characterises the notice as not containing "a reasonable direction capable of being understood with certainty". Multiplex expanded upon this submission by arguing that the prohibition notice lacked particularity. I agree.
  1. [52]
    The intended purpose of a prohibition notice is to stop or prevent an activity at a workplace or modify the way the activity is carried out.[18]  It is a measure founded on an inspector's evaluation of risk based on information available at a particular point in time. The objectives of a prohibition notice are remedial and preventative. The focus ought to be on the need to achieve the objective of stopping an activity that the inspector believes involves or will involve a risk and the matters that give or will give rise to the risk. It follows therefore that the nature of the activity to be prohibited needs to be identified with some degree of particularity.
  1. [53]
    I accept the submission of Multiplex that the activity identified by Inspector Wheeler was, if read literally, unreasonable and, if not construed literally, then what the notice required was unascertainable. Accordingly, the prohibition in the Notice purportedly given under s 195(2) of the WHS Act could not relate to an activity that is properly the subject of s 195(1).
  1. [54]
    Here, the fact that no particular construction activity was identified by Inspector Wheeler created a practical difficulty in Multiplex's ability to effectively respond to the Notice as the Notice did not identify a particular activity that needed to be stopped or which required modification in the way it was being carried out. Inspector Wheeler did little more than identify that falling objects pose a risk to health and safety, a risk which Multiplex would have been acutely aware of given the Project was the construction of high-rise buildings.
  1. [55]
    For the reasons outlined above, the Review Decision ought to be set aside and substituted for a decision to withdraw the Prohibition Notice ab initio.

Order

  1. The Review Decision be set aside and that the Prohibition Notice be withdrawn ab initio.

Footnotes

[1] Exhibit 9 - Affidavit of Gregory Wheeler sworn 8 November 2018 (Exhibit GW 4).

[2] Exhibit 9 - Gregory Wheeler sworn 8 November 2018 (Exhibit GW 3). 

[3] T4-50 Ln 1-12. 

[4] Explanatory Notes, Work Health and Safety Bill 2011 (Qld) 93; Work Health and Safety Act 2011 (Qld) s 195(3).

[5] Explanatory Notes, Work Health and Safety Bill 2011 (Qld) 93. 

[6] (1990) 170 CLR 104, 115-116.  

[7] Exhibit 9 - Affidavit of Gregory Wheeler sworn 8 November 2018 [18]–[19].

[8] Exhibit 9 - Affidavit of Gregory Wheeler sworn 8 November 2018 [18]–[19].

[9] Exhibit 4 Affidavit of John Hippocrates affirmed 9 October 2018 [3]-[30]; T3-110 Ll.6 to T3-112 Ll. 26. 

[10] Exhibit 1- Affidavit of John Hippocrates affirmed 31 July 2018 [7] (c).

[11] Exhibit 1- Affidavit of John Hippocrates affirmed 31 July 2018 [7] (e).

[12] T4-47 Ln 20-40.

[13] T4-47 Ln 15-19

[14] T4-47 Ln 15-19.

[15] T4-49 Ln 25-42.

[16] T4-52 Ln 41-45, T4-53 Ln. 1-3.

[17] Exhibit 1 - Affidavit of John Hippocrates affirmed 31 July 2018 [13]; Exhibit 4 - Affidavit of John Hippocrates affirmed 9 October 2018 [31]-[33].

[18] Explanatory Notes, Work Health and Safety Bill 2011 (Qld) 92. 

Close

Editorial Notes

  • Published Case Name:

    Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)

  • Shortened Case Name:

    Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2)

  • MNC:

    [2019] QIRC 133

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    10 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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