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Unreported Judgment

State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act[2021] QIRC 189Member O'Connor VP
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State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act[2021] QIRC 189

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 189
PARTIES:	State of Queensland (Queensland Health) (Applicant) v The Regulator under the Work Health and Safety Act 2011 (Respondent)
CASE NO:	WHS/2021/49
PROCEEDING:	Application for stay
DELIVERED ON:	2 June 2021
HEARING DATE:	18 May 2021
MEMBER: HEARD AT:	O'Connor VP Brisbane
ORDERS:	The application in WHS/2021/49 is granted; Pursuant to s 229C of the Work Health and Safety Act 2011, the internal review decision dated 13 January 2021 is stayed on the condition that the improvement notice the subject of the review is also stayed; and Pursuant to s 229C(2)(b) of the Work Health and Safety Act 2011, the stay of the internal review decision, and the improvement notice the subject of the review, will remain in effect until the application for the external review is heard and determined by the Commission.
CATCHWORDS:	WORK HEALTH AND SAFETY – EXTERNAL REVIEW – INTERLOCUTORY APPLICATION – APPLICATION FOR STAY OF OPERATION OF DECISION AND IMPROVEMENT NOTICE – whether jurisdiction to order stay pursuant to s 229C of the Work Health and Safety Act 2011 – whether stay should be ordered – whether the applicant has an arguable case – whether the balance of convenience and competing rights of the parties is in favour of the application – whether there is a risk of the review being abortive without the stay.
LEGISLATION: CASES:	Work Health and Safety Act 2011 (Qld), s 19, s 155, s 229, s 229C Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Frigo v Culhaci [1998] NSWCA 88 McBride v Sandland [No 2] (1918) 25 CLR 369 MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235 Multiplex Constructions Pty Ltd v the regulator under the Work Health and Safety Act 2011 [2018] QIRC 116 Ninemia Maritime Corp v Trave GmbH & Co KG ('The Niedersachsen') [1984] 1 All ER 398 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
APPEARANCES:	Mr C. J. Murdoch QC, instructed by Minter Ellison, for the Applicant. Mr S. A. McLeod QC, and with him Ms C-L. Godfrey, for the Respondent.

Reasons for Decision

[1]
On 12 February 2021, the Gold Coast Hospital and Health Service (the Applicant) filed an Application for a Stay of the Internal Review Decision of Improvement Notice I2018484 on the condition the Notice is also stayed, pending the hearing and determination of the Application for External Review by the Commission.

[2]
On 2 December 2020, Dale Blight, an inspector under the Work Health Safety Act 2011 (Qld) ('WHS Act') ('the Inspector') issued Improvement Notice I2018484 ('Security Notice') to the Gold Coast Hospital and Health Service ('the Health Service') relating to the Robina Hospital ('the Hospital') Emergency Department ('ED').

[3]
On 13 January 2021, the WHS Regulator issued internal review decision 57918 confirming the decision of the Inspector in relation to the Security Notice.

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

I, Dale Blight reasonably believe on 30-NOV-2020 at 10:20 that you are contravening a provision of the: Work Health and Safety Act 2011 – section(s) 19(3)(C)

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

You have not ensured, so far as is reasonably practicable the provision and maintenance of safe systems of work; Investigations and conversations reveal that a security guard detail is assigned to the ED. The purpose of security is to minimise risk to patients and/or workers. This includes dealing with clients who are displaying both physical and verbal aggression towards ED staff and others. Although assigned to the ED to minimise risk, the system in place is the security guard can be directed to assist other guards within the Robina hospital to respond to incidents or code blacks. During this period the control measure introduced to reduce risk is removed. If a client displays physical and verbal aggression towards ED staff during this period it's left with the ED staff to manage. This system of work is putting the health, safety and wellbeing of ED staff at risk.

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

Legislation

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

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 -

…

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

Application for external review

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

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

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

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

Note –

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

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

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

Stay of operation of decision

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

(2)
A stay -

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

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

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

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

Principles for Stay

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

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

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

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

Arguable case on the merits

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

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

Ground 1 – failure to consider policies and procedures and incorrect premise

[14]
The Applicant submits that the Inspector failed to consider or properly apply the policies and procedures in place to manage risk, and the overall safety system for the management of security events in the ED and across the Robina Hospital.^[6]

[15]
In reference to the Inspector's affidavit, which annexes a sample of the documents received through the Health Service's s 155 notice response,^[7] the Applicant states that the only information the Inspector appears to have considered in relation to the Security Notice came from discussions with staff that went no further than establishing that the guard assigned to the ED may be called away to respond to other security incidents.^[8]

[16]
The Applicant does not dispute this as a component of its policies.

[17]
Of the documents provided to the Regulator by the Health Service in response to the s 155(2) notice, the Applicant stated the following two are particularly relevant:

Document ID PRO1773: Aggressive Behaviour Management in the Emergency Department.

Document ID PRO1679: Code Black – Personal or Facility Threat: Robina Hospital

Document ID PRO1773: Aggressive Behaviour Management in the Emergency Department.

[18]
This document provides a policy for the safe management of interactions with people in the Hospital ED. The process begins with a triage stage where various factors are considered by a nursing staff member responsible for completing an assessment of risk.

[19]
Individuals are assessed on a scale ranging from non-urgent to emergency, where a categorisation of 'non-urgent', 'semi-urgent' and 'urgent' do not require a security intervention. However, a categorisation of 'immediate' and 'emergency' initiate a Code Black.

Document ID PRO1679: Code Black – Personal or Facility Threat: Robina Hospital

[20]
The Code Black procedure outlines the mechanism for a security response in three levels.

[21]
The process is 'clinically led', either by the Clinical Team Coordinator, Hospital Nurse Coordinator or After-Hours Nurse Manager, depending on classification. The clinical lead of the Code Black initiates the security intervention, not a member of the security team.

[22]
The Applicant argues that the Security Notice fails to engage with these procedures and rather takes the simplistic view that they can be resolved by the permanent presence of a security officer in the ED. On this basis the Inspector could not have held a reasonable belief of the contravention.

Ground 2 – the Inspector erred in his understanding of the basis of the presence of the security guard in the Robina ED

[23]
It is suggested that the Inspector has misunderstood the reasons for the presence of a security guard in the ED by proceeding on the premise that a security guard is 'assigned' to the ED and can act alone in being the 'first responder' to a security event.

[24]
The policies and procedures in place require security guards to work collectively in a team to manage and respond to security events across the facility.^[9] A sole security officer may respond with verbal de-escalation techniques however would not engage as part of a Code Black without other security officers in attendance^[10] and without direction of the clinical lead.^[11]

[25]
In practice, the first security officers to be called to respond to a code are the security officers who are allocated to patrolling the wards at the time the code is called, and the security officer based in the ED will only be called to respond if needed to assist in the incident response, for example by assisting with a physical restraint.^[12]

[26]
The Applicant contends that it is therefore incorrect to say the security guard is 'assigned' to the ED.

[27]
Having regard to the overall system, it is raised that to permanently 'affix' the security guard located in the ED to the ED would create other risks across the safety system by having them unavailable to respond to other incidents and is ineffective as part of the team based security model. Further, it would require resourcing an additional three security guards which the Applicant states is not a reasonably practicable control measure.^[13]

[28]
The Respondent states that on 16 September 2020, Workplace Health and Safety Queensland – Gold Coast received a complaint from the Nursing Unit Manager (NUM) of the Hospital raising concerns that there were insufficient safe areas to assess patients brought in by the Police or Ambulance Service due to mental health concerns; it was reported that doctors and staff had been assaulted in the past.^[14]

[29]
On 11 November 2020, the Inspector met with the NUM and a number of ED nursing staff. During this meeting the staff reportedly expressed concern with the current procedure for security in the ED.^[15]

[30]
Following this meeting, on 25 November 2020, the Inspector telephoned the NUM for further clarification on the concerns raised in the meeting. The NUM confirmed that a security guard assigned to the ED may have to leave to assist other guards and could be absent for up to 45 minutes resulting in ED staff to deal with any violent patients.^[16] The Unit Manager for the ED additionally confirmed the procedure with the Inspector on this same day.^[17]

[31]
The Respondent argues that these investigations provided a sufficient basis for the Inspector to have formed a reasonable belief that the Applicant was contravening the relevant provision of the WHS Act.

Ground 3 – the Security Notice does not set out how the relevant provision has been or is being contravened

[32]
The Applicant submits that the Security Notice fails to engage with the overall system and how it manages risk, and therefore does not properly consider the 'provision and maintenance of safe systems of work' as set out under s 19(3)(c) of the WHS Act; the basis for the Security Notice.

Balance of convenience and competing rights of the parties

[33]
The Applicant submits there is a strong arguable case that the Health Service's existing system of work for the engagement of security officers is operating effectively as part of a broader system in place to minimise risk of violence to workers in the ED.

[34]
It is argued that there is no specific prejudice to be suffered by the Respondent if the stay application was granted. However, there is a significant prejudice to the Health Service in continuing to operate a 24/7 healthcare service where it is required to significantly alter this model to attempt to respond to the Security Notice.

[35]
The Health Service submits that in weighing the competing rights of the parties, the Commission ought to find that the Health Service's rights weigh heavier in favour of granting the stay application in circumstances where:

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

(b)
In these circumstances, particularly taking into account that the ongoing risk to workers from occupational violence is effectively managed through multiple layers of risk controls,^[18] in which security forms one level of the overall system, there is no appreciable risk if the stay is granted and the Application is subsequently unsuccessful; and

(c)
Conversely, the Health Service's capacity to continue to effectively manage health and safety risks across the Robina Hospital are significantly hampered by the inaccurate description of the Health Service's system in the Security Notice and the lack of guidance and direction from WHSQ about what other control measures it expects the Health Service to implement to address the relevant risk.^[19]

[36]
The Respondent contends that the Applicant has failed to discharge its onus in demonstrating that the balance of convenience lies with staying the Security Notice as it has not provided material to directly address the basis upon which warranted the Security Notice being issued.

[37]
In considering the competing rights of each of the parties, the Commission is alive to the purpose of an improvement notice being to protect workers, and others, at a worksite. The Commission is also mindful of the duties and responsibilities of the Respondent as the Regulator of work health and safety in this State. However, those rights and responsibilities are tempered by the mechanism for review established under the WHS Act as exercisable by the Commission.^[20]

Abortive Application

[38]
The prospect of an abortive appeal arises because the operation of the improvement notice remains in force and, as such, the Applicant continues to remain liable to prosecution by Work Health Safety Queensland until the application for external review is determined.^[21]

[39]
The Applicant contends that the prospect of an abortive application arises because, if the Health Service does not receive a stay on the operation of the Security Notice under section 229C of the WHS Act, it will either be:

(a)
required to provide a response to the Security Notice regarding the steps it has taken to remedy the alleged contravention; or

(b)
liable to prosecution by WHSQ for any perceived failures to comply with the Security Notice which might arise prior to a decision being made on the Application.

notwithstanding that the Commission's decision may ultimately result in the Security Notice being set aside.^[22]

[40]
In response, it is asserted that the submissions of the Applicant are misconceived. The Respondent argues that if the Security Notice is set aside by the Commission, the Applicant can remove what it has put in place to comply with the notice.

[41]
The Respondent further submits that, 'in the event that a decision was made to prosecute the Applicant for failure to comply with the Security Notice pending finalisation of the external review, then a subsequent decision of the Commission to hold the notice void ab initio would constitute an absolute defence to any such charge'.^[23]

[42]
This consideration means that where an appeal with arguable prospects is on foot, a stay should be granted where that appears to be necessary to ensure that orders ultimately made on appeal will not be nugatory.^[24]

[43]
At its most fundamental, the argument advanced by the Applicant is that the Health Service has in place an overall safety system for the management of security events in the ED and across the wider Hospital campus. The assertion by the Respondent that should the Applicant be successful in its appeal, they can remove what has been put in place seems, with respect, to undermine the very basis upon which the application is brought.

Conclusion

[44]
It is recognised that the onus is upon the Applicant to demonstrate a proper basis for a stay that will be fair to all parties. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the Applicant bears.

[45]
The Commission has a discretion to grant or refuse a stay. In exercising the discretion, I have formed the view for the reasons advance above that the Applicant has discharged its onus of demonstrating that it has an arguable case on the merits; the balance of convenience and competing rights of the parties favours the granting of the stay; and, there is a risk of the application proving abortive should the stay not be granted.

[46]
Accordingly, I am of the view that the application ought to be granted.

Orders:

The application in WHS/2021/49 is granted;

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

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

Footnotes

[1] (1985) 2 NSWLR 685.

[2] Ibid 694 – 695.

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

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

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

[6] Applicant's Submissions dated 12 May 2021, [11].

[7] WHS Act s 155.

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

[9] Affidavit of Paul McGrotty filed 28 April 2021, [6] – [13].

[10] Affidavit of Paul McGrotty filed 28 April 2021, [12] and [16].

[11] Affidavit of Paul McGrotty filed 28 April 2021, [27] – [29].

[12] Affidavit of Paul McGrotty filed 28 April 2021, [13] – [14].

[13] Applicant's Submissions dated 12 May 2021, [31].

[14] Affidavit of Dale Blight filed 9 April 2021, ex DB1.

[15] Affidavit of Dale Blight filed 9 April 2021, ex DB6.

[16] Affidavit of Dale Blight filed 9 April 2021, ex DB7.

[17] Affidavit of Dale Blight filed 9 April 2021, ex DB8.

[18] Affidavit of Paul McGrotty dated 28 April 2021, [16].

[19] Applicant's Submissions dated 12 May 2021, [40].

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

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

[22] Applicant's Submissions dated 12 May 2021, [44].

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

[24] McBride v Sandland [No 2] (1918) 25 CLR 369, 373-374.

Editorial Notes

Published Case Name:
State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act
Shortened Case Name:
State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act
MNC:
[2021] QIRC 189
Court:
QIRC
Judge(s):
Member O'Connor VP
Date:
02 Jun 2021

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Alexander & Ors v Cambridge Credit Corporation Ltd	View on:NSWLR(1985) 2 NSWLR 685	3 citations Jump To Cite 1 - (1985) 2 NSWLR 685 Cite 2 - (1985) 2 NSWLR 685 Cite 3 - (1985) 2 NSWLR 685
Frigo v Culhaci	View on:JADE[1998] NSWCA 88	2 citations Jump To Cite 1 - [1998] NSWCA 88 Cite 2 - [1998] NSWCA 88
McBride v Sandland (No 2)	View on:JADE(1918) 25 CLR 369	2 citations Jump To Cite 1 - (1918) 25 CLR 369 Cite 2 - (1918) 25 CLR 369
MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011	[2020] QIRC 235	4 citations Jump To Cite 1 - [2020] QIRC 235 Cite 2 - [2020] QIRC 235 Cite 3 - [2020] QIRC 235 Cite 4 - [2020] QIRC 235
Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011	[2018] QIRC 116	4 citations Jump To Cite 1 - [2018] QIRC 116 Cite 2 - [2018] QIRC 116 Cite 3 - [2018] QIRC 116 Cite 4 - [2018] QIRC 116
Ninemia Maritime Corporation v Trave GmbH & Co KG (the Niedersachsen)	[1984] 1 All ER 398	2 citations Jump To Cite 1 - [1984] 1 All ER 398 Cite 2 - [1984] 1 All ER 398
Patterson v BTR Engineering (Aust) Ltd	View on:NSWLR(1989) 18 NSWLR 319	2 citations Jump To Cite 1 - (1989) 18 NSWLR 319 Cite 2 - (1989) 18 NSWLR 319

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

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State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act[2021] QIRC 189