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  4. Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011 - [2018] QIRC 20

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Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011[2018] QIRC 20

Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011[2018] QIRC 20

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011 [2018] QIRC 020

PARTIES:

Maroochydore Surf Life Saving Club

(applicant)

v

The regulator under the Work Health and Safety Act 2011

(respondent)

CASE NO:

WHS/2018/27

PROCEEDING:

Review by commission

DELIVERED ON:

2 March 2018

HEARING DATES:

On the papers

MEMBERS:

Deputy President O'Connor

ORDERS:

  1. The decision of the regulator under the Work Health and Safety Act 2011 is set aside.
  1. The issue is returned to the decision-maker for an internal review to be conducted.
  1. The decision-maker must make the decision within fourteen days of this decision being received.

CATCHWORDS:

WORK HEALTH AND SAFETY LAW – application for external review – where internal review taken to confirm decision – issue returned to decision-maker for internal review

LEGISLATION:

CASES:

Work Health and Safety Act 2011 (Qld), s 191, 226, s 229, s 229D, s 229E

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Reasons for Decision

  1. [1]
    The applicant in this matter, Maroochydore Surf Life Saving Club, seeks a review in accordance with section 229 of Work Health and Safety Act 2011 (Qld) ("the Act").
  1. [2]
    On 19 February 2018 an application was filed in the Industrial Registry seeking an external review of a confirmation of a decision made by an inspector to issue an improvement notice pursuant to s 191 of the Act.
  1. [3]
    The respondent had, on 16 February 2018, advised the applicant that due to an administrative error no internal review was undertaken within 14 days after the application for internal review was received. That error is the ground upon which the application is made.
  1. [4]
    Section 226(1) of the Act states:

"The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received."

  1. [5]
    As no decision was made within the required time frame the reviewable decision was taken to have been confirmed by the internal reviewer.[1]
  1. [6]
    It is not in dispute that the decision by the inspector to issue a notice under s 191 is reviewable for the purposes of Schedule 2A of the Act. The external review of a s 191 decision falls within the jurisdiction of this Commission.
  1. [7]
    Section 229D of the Act outlines the procedure for hearing reviews before the Commission:
  1. (1)
    The procedure for an application for a review is to be under the rules applying to applications for review by the commission under the Industrial Relations Act 2016 or, if the rules make no provision or insufficient provision, in accordance with directions of the commission.
  1. (2)
    An application for a review is to be dealt with by way of rehearing, unaffected by the decision.
  1. [8]
    Section 229E of the Act relevantly provides:
  1. (1)
    In deciding an application for a review, the commission may–
  1. (a)
    confirm the decision; or
  2. (b)
    vary the decision; or
  3. (c)
    set aside the decision and make a decision in substitution for it; or
  4. (d)
    set aside the decision and return the issue to the decision-maker with directions the commission consider appropriate.
  1. [9]
    The reasons of the decision maker must explain the "actual path of reasoning" in sufficient detail to enable the Commission to ascertain whether the decision under review does or does not involve any error.[2] With the present application, the Commission does not have all of the material or information upon which the inspector relied to issue the improvement notice. Therefore it would be inappropriate for the Commission to make a decision on whether the issuing of the notice was justified.
  1. [10]
    It seems that the appropriate course to adopt is to set aside the internal review decision and remit the issue back to the regulator to permit an internal review to be conducted.[3] 

Order

  1. The decision of the regulator under the Work Health and Safety Act 2011 is set aside.
  2. The issue is returned to the decision-maker for an internal review to be conducted.
  3. The decision-maker must make the decision within fourteen days of this decision being received.

Footnotes

[1] Work Health and Safety Act 2011 s 226(6).

[2] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55].

[3] Work Health and Safety Act 2011 s 229E(d).

Close

Editorial Notes

  • Published Case Name:

    Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011

  • MNC:

    [2018] QIRC 20

  • Court:

    QIRC

  • Judge(s):

    Member Deputy President O'Connor

  • Date:

    02 Mar 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
2 citations
Jump To
Cite 1 - (2013) 252 CLR 480
Cite 2 - (2013) 252 CLR 480

Cases Citing

Case NameFull CitationFrequency
Gomez v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 1901 citation
1

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