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  4. Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 - [2021] QIRC 257

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Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2021] QIRC 257

Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2021] QIRC 257

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 257

PARTIES:

Watpac Construction Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011 (Qld)

(Respondent)

CASE NO:

WHS/2019/152

PROCEEDING:

Application for external review

DELIVERED ON:

27 July 2021

HEARING DATE:

1 June 2020

15 October 2020

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDER:

  1. The Review Decision should be set aside and substituted for a decision to withdraw the Improvement Notice ab initio.

CATCHWORDS:

INDUSTRIAL LAW – WORK HEALTH AND SAFETY – QUEENSLAND – where application for external review of a decision to issue an improvement notice – where reviewable decision stayed pending determination – whether belief held by inspector was reasonable – whether inspector made reasonable enquiries – whether improvement notice was insufficiently particularised – whether inspector's mind was coloured by the fact that there was non-compliance with a provision of another act – whether existing emergency plan was effective – determined review decision be set aside and improvement notice withdrawn.

LEGISLATION:

Work Health and Safety Act 2011 (Qld), s 3, s 160, s 191, s 192, s 229E

Work Health and Safety Regulation 2011 (Qld), r 43

Building Act 1975 (Qld)

Queensland Building and Construction Commission Act (Qld)

Work Health and Safety Act 2011 (NSW)

CASES:

DDP v Lyons (a Pseudonym) [2018] VSCA 247

George v Rocket & Anor (1990) 170 CLR 104

Goldsmith v Sanderlands [2002] HCA 31; (2002) 76 ALJR 1024

Growthbuilt Pty Ltd v Safe Work NSW [2018] NSWIR Comm 1002

UAM Pty Ltd v Workers' Compensation Regulator [2015] QIRC 209

APPEARANCES:

Mr T.A. Spence, Counsel instructed by Mr M. Fettell, DWF (Australia) Pty Ltd for the Applicant.

Mr S.P. Gray, Counsel, directly instructed by Ms K. Bednarek, the Regulator for the Respondent.

Reasons for Decision

  1. [1]
    On 7 November 2019, Watpac Construction Pty Ltd (the Applicant/Watpac) filed an application for external review of a decision to issue an Improvement Notice under s 191 of the Work Health and Safety Act 2011 (Qld) (the WHS Act).
  1. [2]
    The Applicant was the principal contractor for the works undertaken at North Queensland Stadium (the NQ Stadium), 17-49 Saunders Street, Townsville, Queensland.
  1. [3]
    Following inspections on 25 and 26 September 2019 the inspector issued Improvement Notice I2033078 on 27 September 2019 under s 191 of the WHS Act to remedy an alleged contravention under r 43(2) of the Work Health and Safety Regulation 2011 (WHS Regulation).  The review is confined to that specific alleged contravention.
  1. [4]
    The Applicant seeks an order from the Commission to set aside the internal review decision dated 25 October 2019 confirming the inspector's decision to issue the Improvement Notice and substitute a new decision to set aside and cancel the Improvement Notice.
  1. [5]
    The Improvement Notice provides the following details of the alleged contravention:

After a review of the document titled Project Emergency Response Plan (PERP) TO55 North Queensland Stadium dated August 2019, I have formed a reasonable belief that you have failed to maintain an emergency plan for the workplace so that it remains effective.  The emergency plan does not have regard to all the fire precautions required during construction.  The building has an effective height in excess of 12 metres and the fire hydrants and fire hose reels on levels, ground, one, two and three are not operational.  There is no reference in the emergency plan how to manage the risks associated with the advent of a fire requiring the use of fire hydrants and fire hose reels.[1]

  1. [6]
    Within the Improvement Notice the following directions were issued as to the measures to be taken to remedy or prevent the contravention:

Review and amended (sic) the Project Emergency Response Plan (PERP) TO55 North Queensland Stadium dated August 2019 to consider the risks associated with the advent of a fire and the operational status of fire hydrants and fire hose reels.[2]

Grounds of review

  1. [7]
    The Applicant seeks the following grounds of review:
  1. The Inspector fundamentally erred in issuing Watpac with Improvement Notice I2033078 and that decision ought to be set aside and Improvement Notice I2033078 be cancelled.
  2. The Inspector's belief was not objectively reasonable.
  3. The Inspector did not make reasonable inquiries.
  4. The notice was insufficiently particularised.
  1. [8]
    The relevant facts and contentions relied on by the Applicant in the application are as follows:
  1. The notice alleges that our client contravened r 43(2) of the WHS Regulation by failing to maintain an emergency plan for the workplace so that it remains effective.  The belief was allegedly formed after reviewing our client's PERP dated August 2019.
  2. The Applicant's specific emergency response plan for a fire emergency, addressing all "fire precautions", is dealt with at s 6.4 of the PERP.
  3. The PERP, at s 6.4, sets out the procedure in the event of a fire occurring, including that "employees are to attempt to extinguish the fire only if confident to do so with equipment available" and "Workers are to evacuate if the fire cannot immediately and safely be extinguished".  The relevant equipment includes fire extinguishers and other temporary fire suppression equipment.
  4. The Applicant purposively does not require its workers to fight fires with hoses.  To do so would create a health and safety risk to the individuals fighting fires.  The Applicant's plan sensibly focuses on swift evacuation to ensure all workers are removed from any risks to their health and safety.
  5. There is no requirement in the WHS Act or WHS Regulation that fire hydrants/reels must form part of the emergency response plan, nor is it directly alleged or particularised in the notice that this is the case.
  6. To allege that an effective response plan must include the use of fire hydrants/reels would impose a standard/duty that is not provided for by the WHS Act or WHS Regulation that fire hydrants/reels must form part of the emergency response plan, nor is it directly alleged or particularised in the notice that this is the case.

. . .

The Legislation

  1. [9]
    Section 160 of the WHS Act provides that an inspector has, inter alia, the power to require compliance with the Act through the issuing of notices.
  1. [10]
    Section 191 of the WHS Act sets out the circumstances which must exist prior to the issuing of an Improvement Notice:

191 Issue of improvement notices

  1. (1)
    This section applies if an inspector reasonably believes that a person -
  1. (a)
    is contravening a provision of this Act; or
  2. (b)
    has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
  1. (2)
    The inspector may issue an improvement notice requiring the person to—
  1. (a)
    remedy the contravention; or
  2. (b)
    prevent a likely contravention from occurring; or
  3. (c)
    remedy the things or operations causing the contravention or likely contravention.
  1. [11]
    Section 192 of the WHS Act sets out the requirements for the contents of the Improvement Notice:

192 Contents of improvement notices

  1. (1)
    A prohibition notice must state -
  1. (a)
    that the inspector believes the person -
  1. (i)
    is contravening a provision of this Act; or
  1. (ii)
    has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and
  1. (b)
    the provision the inspector believes is being, or has been, contravened; and
  2. (c)
    briefly, how the provision is being, or has been, contravened; and
  3. (d)
    the day by which the person is required to remedy the contravention or likely contravention.
  1. (2)
    An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.
  2. (3)
    The day stated for compliance with the improvement notice must be reasonable in all the circumstances.
  1. [12]
    The Improvement Notice alleges a breach of r 43(2) of the WHS Regulation.  Regulation 43 states:

 43 Duty to prepare, maintain and implement emergency plan

  1. (1)
    A person conducting a business or undertaking at a workplace must ensure that an emergency plan is prepared for the workplace, that provides for the following -
  1. (a)
    emergency procedures, including -
  1. (i)
    an effective response to an emergency; and
  1. (ii)
    evacuation procedures; and
  1. (iii)
    notifying emergency service organisations at the earliest opportunity; and
  1. (iv)
    medical treatment and assistance; and
  1. (v)
    effective communication between the person authorised by the person conducting the business or undertaking to coordinate the emergency response and all persons at the workplace;
  1. (b)
    testing of the emergency procedures, including the frequency of testing;
  1. (c)
    information, training and instruction to relevant workers in relation to implementing the emergency procedures.
  1. (2)
    A person conducting a business or undertaking at a workplace must maintain the emergency plan for the workplace so that it remains effective.
  1. (3)
    For subsections (1) and (2), the person conducting the business or undertaking must have regard to all relevant matters including -
  1. (a)
    the nature of the work being carried out at the workplace; and
  1. (b)
    the nature of the hazards at the workplace; and
  1. (c)
    the size and location of the workplace; and
  1. (d)
    the number and composition of the workers and other persons at the workplace.
  1. (4)
    A person conducting a business or undertaking at a workplace must implement the emergency plan for the workplace in the event of an emergency.
  1. [13]
    The Explanatory Notes in relation to r 43 provide:

Division 4 Emergency plans

Duty to prepare, maintain and implement emergency plan

Clause 43 requires a PCBU at a workplace to prepare an emergency plan for the workplace which provides for specified requirements.  All relevant matters must be considered when preparing the plan, and the PCBU is required to implement the emergency plan in the event of an emergency.

This section commences 1 July 2012.[3]

Background

  1. [14]
    On 25 September 2019, Inspector Finn attended the NQ Stadium in response to a request from Mr G. Harradine, Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland and Mr J. White, Plumbers & Gasfitters Employees Union Queensland, Union of Employees, both WHS Entry Permit Holders, seeking the Applicant provide them with a copy of the Applicant's Project Emergency Response Plan (PERP).[4]
  1. [15]
    Following discussions with Mr B. Hayes, Project Manager employed by the Applicant, Inspector Finn was provided with a copy of the Applicant's PERP which showed a review date of 18 August 2019.
  1. [16]
    Part 6.4 of the PERP provides:

6.4 Fire Emergency

In the event of fire, everyone is to remain calm and warn all persons in the vicinity of danger.  Employees are to attempt to extinguish the fire only if confident to do so with equipment available.

In the event that the fire cannot be brought immediately under control, the Watpac Site Manager will advise the Emergency Response Controller of the need for assistance from the Fire Brigade.

Should assistance be required, full emergency response/evacuation procedures will be followed.

Workers are to evacuate if the fire cannot immediately and safely be extinguished.

Watpac is to ensure that not less than one fire extinguisher to suit Class A, B and C fires and fires involving electrical equipment is to be provided at all times to each:

  • Required exit;
  • The first aid office; and
  • At 2 metres distance from each temporary power board location.

All Watpac ERT members shall be trained in the usage of fire extinguishers.

All fire protection equipment will be tested as required by statutory requirements.

A review and report of the temporary emergency fire suppression equipment placement on site shall be undertaken prior to construction works commencing.

  1. [17]
    On 26 September 2019 Inspector Finn contacted Mr R. Alloway, Station Officer, Queensland Fire and Emergency Services (QFES) to obtain technical advice about the fire system.  Inspector Finn accompanied Mr Alloway to the Applicant's site office and they were escorted by Mr C. Hullick, Safety Advisor and Mr T. O'Rourke, Site Manager to the water tanks where Mr Alloway provided information about the operation of the fire water tanks and the access requirements for a QFES vehicle.  Mr Alloway told Inspector Finn the fire hydrants and fire hose reels were not operational and what would be required to make the services operational.  Mr Alloway also observed that the work being undertaken at the fit-out stage poses a greater risk of fire compared with the initial construction stages.[5]
  1. [18]
    Inspector Finn's evidence was that as at 25 September 2019, the Stadium construction had reached an effective height in excess of 12 metres and he was concerned about the contents of the PERP and that it did not properly direct what should happen with all 'equipment available' in the event of a fire emergency.  He was aware that the fire hose reels would become operational on and from 1 October 2019, however the PERP in its current form would not remain effective because it did not specifically refer to fire hose reels.  The PERP referred to the fire extinguishers but made no mention about fire hose reels and did not direct employees that the fire hose reels were not operational.[6]
  1. [19]
    When he issued the Improvement Notice on 27 September 2019, Inspector Finn said the fire hydrants and fire hose reels on the ground and levels one, two and three were not operational.

Outline of Argument

  1. [20]
    The Applicant submits that the Improvement Notice issued by Inspector Finn on 27 September 2019 ought to be cancelled and the review decision set aside.
  1. [21]
    The Improvement Notice alleges that the Applicant failed to maintain an emergency plan for the workplace so that it remains effective.  Therefore, the question the Commission must determine is whether at the time the inspector formed his 'reasonable belief', was the Applicant's emergency plan effective and would it remain effective?'.[7]
  2. [22]
    On 26 September 2019, in company with Mr Alloway (QFES), the inspector returned to the site office and reviewed the PERP.  The Improvement Notice was issued via email on 27 September 2019.
  1. [23]
    The Respondent submitted the Improvement Notice was not issued by the inspector relying on E1.9 of the National Construction Code ('NCC').  Rather, it was issued having regard to the factual circumstances existing at the time which, as identified in the Improvement Notice, included that the Applicant did not have operational fire hydrants and fire hose reels.[8]
  1. [24]
    The Respondent states the Applicant's assertion that it was in fact compliant with the NCC is at odds with the views expressed by Mr Alloway and by the direction to rectify issued by the Queensland Building and Construction Commission ('QBCC') on 4 October 2019 which particularised the required action.[9]
  1. [25]
    The Applicant submitted hose reels and hydrants were in place on every necessary level with the essential booster connections installed.  The reels and hydrants were fully plumbed and connected to the main water tank on site.  In the event of a fire, the expectation was that the QFES would arrive and immediately pressurise the lines to enable QFES (not Watpac's Emergency Response Team (ERT)) to fight the fire.[10]
  1. [26]
    Specifically referring to the PERP, the Applicant submits that despite the Notice alleging, 'the emergency plan does not have regard to all the fire precautions required during construction', there is no basis to make this contention, nor is it particularised in any meaningful way.  The emergency response plan for a fire emergency, addressing all 'fire precautions', is dealt with at s 6.4 of the PERP.[11]
  1. [27]
    The Applicant states the PERP intentionally does not require workers to attempt to extinguish fires with hose reels.[12]
  1. [28]
    The PERP is to be reviewed by the Project Safety Coordinators and Project Manager on a monthly basis throughout the life of each Project.  The Applicant had in place an ERT from the commencement of the Stadium Project and at all material times.  The Applicant requires ERT members:
  • to undertake fire warden and firefighting equipment training at the Project;
  • to undergo a Warden and Fire Awareness and Extinguisher training course;
  • to participate in emergency evacuation drills at the Project; and
  • upon commencement to be advised of what equipment is available for use in the event of a fire emergency.[13]
  1. [29]
    The Applicant submits the evidence demonstrates that as at 27 September 2019 Inspector Finn was of the belief that the PERP was effective but would become ineffective on or from 1 October 2019.  The following exchange took place in respect of this matter:

MR SPENCE: It seems to be that the submission now is that the improvement notice was issued because of a concern that the PERP would not remain effective as of 1 October.  The problem I've got with that, your Honour, is that when one directs their mind to section 191 of the Work Health and Safety Act.

HIS HONOUR: Yes.  Yes.

MR SPENCE: - - - what that requires is - at 191, subsection (1) that an inspector reasonably believes that (a) a contravention - a contravene - a contravening - sorry:

…that a person [a] is contravening a provision of this Act or (b) has contravened a provision in circumstances that make it likely that the contravention will continue to be repeated.

HIS HONOUR: Yes.

MR SPENCE: It seems that the submission now is that there wasn't, in fact, a contravention on the 27th of September and that it was a prospective concern that once these things became operational, there would be a contravention.  Now, my submission on that, your Honour, is that that part of the Act doesn't allow you to issue a notice if there's not currently a contravention.  The inspector must reasonably believe that either there's been a contravention or, two, that there's been a contravention and it's likely that there'll be a contravention in the future.  If it's the case that the notice was issued on the basis that there was a concern that this thing - or that what the inspector didn't think had happened would create a contravention into the future, i.e. on 1 October 2019, the notice must fail because there wasn't, in fact, a convention - contravention on that day.[14]

. . .

. . . if it's the case now that the respondents say that that notice was issued because of a concern in the future that there might be a contravention, well, the notice shouldn't have been issued in the first place because there, one, wasn't a contravention or, two, there hadn't been a contravention or in the case where there is likely to be a contravention into the future.  So it might be, your Honour, that we don't have to be here because if that position is now about the notice being issued as a consequence of concern about a future contravention, the Act does not contemplate an improvement notice being issued in those circumstances.[15]

  1. [30]
    Following this exchange, the matter was adjourned for the Respondent to consider whether the argument outlined above was a change in approach by the Respondent.  Upon recommencing the hearing, the Respondent advised the Commission as follows:

MR GRAY: Your Honour, I've clarified with my friend that the reasons that the inspector issued the improvement notice are dealt with in his affidavit.  He was concerned that at the time he issued the improvement notice, the emergency response plan was not effective.  He was also concerned that it would not remain effective in accordance with the requirements of the Act and the regulation.[16]

  1. [31]
    It was submitted by the Applicant the inspector's belief on 27 September 2019 that the PERP was effective, as confirmed by his affidavit, was that on or around 1 October 2019 the Applicant's plan would 'no longer remain effective'.  Accepting this position would mean that the prerequisites of s 191 of the WHS Act were not met on 27 September 2019 in that no contravention of the WHS Act occurred and therefore the Improvement Notice cannot stand.[17]
  1. [32]
    The Applicant submits the Respondent has sought to rely on E1.9 of the NCC and that any evidence of this nature should not be received or considered by the Commission as it does not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.[18]
  1. [33]
    In referencing the Australian Building Codes Board, the Applicant states:

The NCC is an initiative of the Council of Australian Government developed to incorporate all on‑site construction requirements into a single code.  The NCC is comprised of the Building Code of Australia (BCA), Volume One and Two; and the Plumbing Code of Australia, Volume Three.  The NCC is given legal effect through State and Territory Building Control and Plumbing legislation.

The BCA is given legal status in Queensland by reference in the Building Act 1975.

The QBCC are empowered to enforce compliance with the Building Act and, in turn the NCC.  This power is expressly granted through the Queensland Building and Construction Commission Act 1991 (Qld).[19]

  1. [34]
    The Applicant submits it is clear ss 160 and 192 of the WHS Act provide no such powers for WHSQ and/or inspectors to enforce compliance with the Building Act 1975.  The inspector improperly relied on E1.9 of the NCC to form his reasonable belief the regulation had been contravened.[20]
  1. [35]
    The Applicant submits the evidence has shown that Inspector Finn did not ask the representatives of the Applicant if, in reviewing the PERP, they had considered the risks associated with the advent of a fire and the operational status of the fire hydrants and fire hose reels.[21]  Consequently, the inspector's belief was not reasonable.
  1. [36]
    Inspector Finn provided to the Commission the notes he recorded on site on both 25 and 26 September 2019.[22]
  1. [37]
    Under cross-examination, Inspector Finn accepted that he recorded all relevant matters that he discussed with Mr Hayes on site on these dates in his notebook.[23]  Inspector Finn made no notes in his notebook about any discussions with Mr Hayes concerning the PERP.
  1. [38]
    Even though Inspector Finn was at the Project on 25 and 26 September 2019, the Applicant submits that he failed to make any relevant enquiries regarding:
  1. a.
    the Applicant's PERP generally;[24]
  1. b.
    whether the Applicant had considered the risks associated with the advent of a fire and the operational status of the fire hydrants and fire hose reels;[25]
  1. c.
    the Applicant's Emergency Response Team;[26]
  1. d.
    the emergency response process in place at the Project;
  1. e.
    any fire drills that had been conducted;
  1. f.
    compliance with regulation 43(2) of the Regulation;[27]
  1. g.
    the nature of work being carried out at the workplace;[28]
  1. h.
    the nature of the hazards at the workplace;[29]
  1. i.
    the size and location of the workplace;[30] and
  1. j.
    the nature and composition of workers and other persons at the workplace.[31]
  1. [39]
    If the Inspector had made reasonable enquiries it is contended that he would have discovered that:[32]
    1. a.
      the Project Safety Management Plan and Project Emergency Response Plan was reviewed by Mr Hayes and the NQ Stadium Project Safety Coordinators on a monthly basis;
    1. b.
      Mr Hayes was involved in developing the Emergency Response Team at the NQ Stadium Project;
    1. c.
      the Emergency Response Team was a team of persons appointed to direct and control the implementation of the Project's emergency response procedures;
    1. d.
      the Emergency Response Team were required to undergo a Warden and Fire Awareness and Extinguisher training course conducted by Chubb Training Group that had regard to the systems, procedures and available equipment at the NQ Stadium Project;
    1. e.
      Mr Hayes participated in a training course on 20 June 2018 - Mr Hayes could have provided a copy of the training report and attendance register dated 20 June 2018;
    1. f.
      upon commencement at the Project, workers were advised via the induction form of the existence of fire extinguishers and the Project's emergency response process, including the function of the ERT in an emergency situation;[33] and
    1. g.
      had Inspector Finn made any enquiries of Mr Hayes prior to issuing the Improvement Notice, Mr Hayes could have told Inspector Finn the reason why the PERP intentionally does not require workers to attempt to extinguish fires with fire hydrants and fire hose reels was because:
  1. the safety risk that would be created to the individual fighting the fire;
  2. the use of water may exacerbate the fire and/or create a catastrophic risk to the individual fighting the fire;
  3. the use of fire extinguishers as an initial measure to extinguish the fire (if safe to do so) was preferred by the Applicant given extinguishers are more adept than water to suppress different types of fire (i.e. chemical and electrical); and
  4. the safety of workers is ensured by expecting them to evacuate if they cannot immediately extinguish the fire.
  1. [40]
    The Applicant submitted the evidence proves that at all material times, Fire Evacuation Signs and Diagrams were situated at the following locations at the Project:[34]
  1. a.
    Western stand - ground level, in three separate locations;
  1. b.
    Western stand - level 1, in four separate locations;
  1. c.
    Western stand - level 2, in four separate locations;
  1. d.
    Western stand - level 3, in four separate locations;
  1. e.
    Western stand - level 4, in four separate locations; and
  1. f.
    Western stand - level 4, in three separate locations.
  1. [41]
    The signs explained to workers:
  1. a.
    what fire fighting equipment was available at the Project;
  1. b.
    the evacuation procedure at the Project; and
  1. c.
    how to operate fire extinguishers.
  1. [42]
    Inspector Finn conceded during cross-examination:

MR SPENCE: The PERP did not have a reference … sorry, the PERP did have a reference to fire extinguishers and their areas of placement.  Now, that reference to the building height of 12 metres, and the fire hydrants and fire hose reels, that's wording out of the National Construction Code, isn’t it?

INSPECTOR FINN; I believe so.

MR SPENCE: And that's not a code that you have jurisdiction for, is it?

INSPECTOR FINN: It's a - the Code is just - it's a document that's referred to in the building and construction industry.

MR SPENCE: Yes.  But you have no power, as a work health and safety inspector, to enforce that Code, do you?

INSPECTOR FINN: No.

MR SPENCE: And those things you highlighted, they are not requirements of the Workplace Health and Safety Act, are they?

INSPECTOR FINN: No.[35]

  1. [43]
    The Applicant submits there was no objective basis for the inspector to form his belief that the Applicant had contravened r 43(2).  Further, there was no alleged contravention of r 43(1) and the inspector failed to enquire about the matters that Watpac had regard to in accordance with r 43(3).[36]
  1. [44]
    Whilst the inspector sought an opinion from Mr Alloway, he failed to make reasonable enquiries of Mr Hayes of Watpac regarding his assumptions as to the Applicant's use of fire hose reels and fire hydrants and relied on his subjective opinion.[37]
  1. [45]
    The Respondent asserts that Inspector Finn set out the basis for his reasonable belief at paragraphs 53 to 59 of his affidavit.[38]  In cross-examination the inspector said:
  1. (a)
    he relied on information received from Mr Alloway, along with other matters as well;[39]
  2. (b)
    he had discussions on site with Mr Hayes and other Watpac officers about the PERP not directing workers to use the fire hydrants or fire hose reels;[40]
  3. (c)
    his thoughts at the time were about the risks associated with the possibility of a fire on site and the discussions centred around the use of fire hose reels or fire hydrants;[41]
  4. (d)
    he did not think the PERP was effective as at 27 September 2019, and, in its current form it would not remain effective;[42]
  5. (e)
    he had regard to the fact that when there is a fire, the immediate response of persons would be to use the available equipment;[43]
  6. (f)
    there is no requirement under the WHS Act for the provision of firefighting equipment on a construction site but it does need to be taken into consideration when preparing an emergency plan;[44] and
  7. (g)
    based on the discussions he had with Mr O'Rourke and other representatives from the Applicant on 26 September 2019 he was informed that fire hose reels and fire hydrants would not be operational until later that following week.[45]
  1. [46]
    In the hearing before the Commission, Inspector Finn gave evidence about why he referred to the fire hydrants and fire hose reels not being operational and why he considered the PERP was not effective:

INSPECTOR FINN: I believe that by not having a plan that is effective or current, it would not give everybody or not give the person - the workers on site the information that they would require or the opportunity to fight or attend to a fire.  So there was a risk to the workers and others' safety, given that the plan was not effective.  Once a plan is effectively or there are any changes to the plan, it should be notified to all persons across a construction site.  So by not having an effective plan, it put, in my mind, or I made the reasonable belief that the workers would be at risk, given that the plan wasn't effective.

MR GRAY: What was it about the plan that was not effective, insofar as you've referred to the fire hydrants and the fire hose reels?

INSPECTOR FINN: So the only available equipment was the fire extinguishers, and given the building had reached a height as determined by the building code, it called up that it should have operational fire hydrants and fire hose reels, given the class of building that is under construction.[46]

  1. [47]
    The Respondent further submitted other hazards of the workplace the inspector considered when issuing the Improvement Notice included the possibility of a fire which would rely on fuel provided by cardboard boxes present at the worksite:

MR GRAY: Inspector Finn, did you consider any of the hazards of the workplace when you issued the improvement notice?

INSPECTOR FINN: Yes, I did.

MR GRAY:What hazards did you consider?

INSPECTOR FINN:  The hazards surrounding the possibility of a fire, which would rely on fuel, and the fuel in this instance would be cardboard.[47]

  1. [48]
    The Applicant's argument is that it is clear from Inspector Finn's evidence that he issued the Improvement Notice because of the Applicant's contraventions of the NCC.[48]  The references in paragraph [58] of Inspector Finn's affidavit to 'pieces of equipment should have been available' is a reference to a requirement imposed by the NCC and not the WHS Act or Regulation.[49]
  1. [49]
    As the following exchange between Counsel for the Applicant and Inspector Finn illustrates, there was no specific requirement under the WHS Act that fire hose reels or fire hydrants must form part of the emergency response plan:

MR SPENCE: All right.  There's no requirement under the Work Health and Safety Act that fire hose reels be provided as firefighting equipment on a construction site, is there?

INSPECTOR FINN: No.

MR SPENCE: And there's no requirement under the Work Health and Safety Act that fire hydrants be provided as firefighting equipment on a construction site, is there?

INSPECTOR FINN: No.

MR SPENCE: And there's no requirement under the Work Health and Safety Act that fire hose reels must form part of an emergency response plan, is there?

INSPECTOR FINN: No, but it needs all to be taken into consideration when preparing an emergency plan.

…

MR SPENCE: Right.  But there's no specific requirement under the Act, is there?

INSPECTOR FINN: That's correct.

MR SPENCE: Right.  And there's no specific requirement under the Act that fire hydrants must form part of the emergency response plan, is there?

INSPECTOR FINN: Under the Act?  Yes?---So when you're talking about the Act, are you referring to the Act and the Regulation?

MR SPENCE: . . . No, I'm talking about - - -?---Beg your pardon? --- the Work Health and Safety Act?---The Act?

INSPECTOR FINN: No, there's nothing in the Act that relates to that.

MR SPENCE: Right.  And there's no requirement under the Work Health and Safety Regulation that fire hose reels be provided as firefighting equipment on a construction site, is there?

INSPECTOR FINN: No.

MR SPENCE: And there's no requirement under the Work Health and Safety Regulation that fire hydrants be provided as firefighting equipment on a construction site, is there?

INSPECTOR FINN: No.

MR SPENCE: And there's no requirement that fire hose reels must form part of an emergency response plan under the Regulation, is there?

INSPECTOR FINN: Not specifically, no.

MR SPENCE: And there's no requirement under the Work Health and Safety Regulation that fire hydrants are to form part or must form part of an emergency response plan, is there?

INSPECTOR FINN: No.

MR SPENCE: Right.  So - - -?---Not specifically.[50]

  1. [50]
    The inspector's powers are set out at s 160 of the WHS Act, including, inter alia, 'to require compliance with this Act through the issuing of notices'.[51]  The statutory direction contained in s 160 of the WHS Act requires that the source of power or authority to ensure compliance must be identified within the WHS Act.[52]
  1. [51]
    The Applicant submits the inspector was influenced by those alleged contraventions raised regarding the NCC, in addition to the Improvement Notice also seeking to enforce E1.9 of the NCC.  It is submitted there is no source of power within the WHS Act for Inspector Finn to enforce the NCC.[53]
  1. [52]
    The Respondent admits that the Improvement Notice merely directed the Applicant to review its emergency response plan to consider the risks associated with the advent of the fire and the operational status of the fire hydrants and fire hose reels.[54]
  1. [53]
    The Applicant submits the inspector made no enquiries in respect of the totality of the process the Applicant had in place to respond to a fire emergency.[55]
  1. [54]
    The Respondent contends that the Applicant's PERP creates a risk by failing to direct workers not to use a fire hose reel. The Applicant argues that the Commission should reject that contention on the basis that:
  1. a.
    this argument advanced by the Respondent now did not form part of the Inspector's belief that the Applicant allegedly contravened regulation 43(2).  The Inspector did not particularise this within the notice as the basis for the purported contravention, nor did he record any notes that this matter formed part of his belief; and
  1. b.
    the Respondent failed to have regard to the totality of the Applicant's emergency response process,[56] features of which clearly obviate the purported risk referred to at paragraph [42] of its outline.[57]
  1. [55]
    The Respondent submitted there is evidence that prior to 25 September 2019 the Applicant had been advised of matters relating to the operational status of the fire hydrants and fire hose reels.[58]
  1. [56]
    The Applicant objected to the entire contents of the affidavit of Mr Peter Auditore,[59] QBCC building inspector.  However, the Respondent submits that the evidence is relevant because it relates to the basis of the reasonable belief as expressed by Inspector Finn.  Specifically, during the inspection undertaken by him on 23 September 2019, an undertaking was apparently given by Mr Hayes to Mr Auditore on behalf of the Applicant that steps would be taken to make the fire hydrant and fire hose reels operational.[60]
  1. [57]
    The Respondent submitted there is an issue as to whether the fire hydrants and fire hose reels were operational, and the inspector's role was to determine the operational status of those pieces of equipment.  Inspector Finn was not undertaking any steps to ensure compliance with the NCC; that fell within the jurisdiction of the QBCC.[61]
  1. [58]
    Inspector Finn's evidence was that he was aware that an undertaking had been given, which influenced the date he nominated for compliance with the Improvement Notice.[62]
  1. [59]
    The Respondent accepts that the notice was issued based on a reasonable belief, stated to be held by the inspector as at 27 September 2019 at 1:15pm.  However, the Respondent submits that this does not mean that the enquiry by the Commission is limited solely to the circumstances that exist at the specific date and time the notice was issued.[63]  The operative requirement is that the Applicant has an emergency response plan which 'remains' effective.
  1. [60]
    The Respondent submits that Inspector Finn's notice was not issued relying on E1.9 of the NCC, rather, the notice was issued having regard to the factual circumstances existing at the time which, as correctly identified in the Improvement Notice, included that the Applicant did not have operational fire hydrants and fire hose reels.
  1. [61]
    It was argued that the Applicant's assertion that its emergency response plan 'intentionally does not require workers to attempt to extinguish fires with hose reels' is inconsistent with what is written in the plan.  Fire hose reels were installed and would be, or appear to be, 'available equipment' which an employee might attempt to use in an emergency situation.
  1. [62]
    It was contended by the Respondent that the emergency response plan does not direct 'workers who might be attempting to safely extinguish a fire', not to use a fire hose reel.  That could, it is submitted, create a risk of injury to a person in such an emergency.  The Respondent argues that at the date and time the Improvement Notice was issued, the Applicant had indicated it was going to comply with its statutory obligations under the NCC and make the fire hose reels and hydrants operational.  At the very least, it was submitted that a fire hose reel would become 'equipment available' to extinguish a fire. The emergency response plan does not direct 'employees' not to use that particular piece of available equipment when it is operational.
  1. [63]
    The Respondent further submits that it should also be observed that all the Applicant was being directed to do was to review its emergency response plan to consider the risks associated with the advent of the fire and the operational status of fire hydrants and fire hose reels. There was nothing unreasonable about this direction.
  1. [64]
    The Respondent submits that the appropriate order is for the external review to be dismissed and the notice confirmed.

Consideration

  1. [65]
    The purpose of issuing an Improvement Notice is aimed at remedying a contravention of the WHS Act or to prevent a contravention in circumstances that make it likely of re-occurring.  An inspector may issue an Improvement Notice when the matter does not involve a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard. An Improvement Notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely breach.
  1. [66]
    The inspector's powers are derived from s 160 of the WHS Act. Relevantly, an inspector has the function of providing information and advice about compliance with the WHS Act;[64] to require compliance with the WHS Act through the issuing of notices;[65]and to investigate contraventions of the Act and assist in the prosecution of offences.[66]
  1. [67]
    The obligation imposed on an inspector under s 160 of the WHS Act is given effect by ss 191 and 192 of the WHS Act.
  1. [68]
    In order to issue the Improvement Notice, the inspector must reasonably believe that a person is contravening a provision of this Act; or has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
  1. [69]
    Reasonable belief is not defined in the WHS Act.  In George v Rocket & Anor,[67] the High Court considered 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.[68]

  1. [70]
    A reasonable belief requires the existence of facts which are sufficient to induce the belief in a reasonable person. 
  1. [71]
    The Applicant has a primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking and others who may be affected by the carrying out of work.[69]  Consistent with that duty is the development and maintenance of an emergency plan which clearly sets out a series of instructions that workers and others at the workplace should do in an emergency.
  1. [72]
    It is not in dispute that the Applicant has an emergency plan in accordance with r 43(1) of the WHS Regulations.  The sole issue in dispute is whether the Applicant has maintained the emergency plan for the workplace so that it remains effective.
  1. [73]
    In the present case, Inspector Finn has issued an Improvement Notice pursuant to r 43(2) of the WHS Regulations on the basis that he has formed a reasonable belief that the Applicant has failed to maintain an emergency plan for the workplace so that it remains effective.
  2. [74]
    The basis for the belief, in part, is said to be because the emergency plan does not have regard to all the fire precautions required during construction.  Moreover, in apparent reliance on E1.9 of the NCC, he states that:

...you have failed to maintain an emergency plan for the workplace so that it remains effective. The emergency plan does not have regard to all the fire precautions required during construction. The building has an effective height in excess of 12 metres and the fire hydrants and fire hose reels on levels, ground, one, two and three are not operational.  There is no reference in the emergency plan how to manage the risks associated with the advent of a fire requiring the use of fire hydrants and fire hose reels.[70]

  1. [75]
    In his affidavit, Inspector Finn said:
  1. I was concerned about the contents of the PERP and that it did not properly direct what should happen with all 'equipment available' in the event of a fire emergency.
  2. The reason I was concerned about was because during our discussions, Mr Hayes had told me that he did not want its workers attempting to fight fires with fire hose reels. As I was aware that the fire hose reels would become operational on and from 1 October 2019, the PERP in its current form, would not remain effective because it did not specifically refer to the fire hose reels. The PERP referred to the fire extinguishers but made no mention about fire reels. It did not direct employees that the fire reels were not operational.
  3. I was directing my mind to workplace health and safety for all workers, which included any emergency response personnel who might be attending to fight a fire. My view was that those personnel attending would expect the required firefighting equipment to be operational and would rely on that equipment if necessary to fight a fire.[71]
  1. [76]
    During cross-examination, Inspector Finn's evidence was challenged in respect of paragraph 53 of his affidavit. He was asked:

MR SPENCE:- - - that means that you thought the PERP was effective, as at 27September, doesn’t it?

INSPECTOR FINN:No.

MR SPENCE: What does it mean?

INSPECTOR FINN:It means that the PERP wasn’t – or the PERP wasn’t effective on the 27th.

MR SPENCE: Right. Well why do you say?

INSPECTOR FINN:Hence – hence the reason for the improvement notice.

MR SPENCE: Right. But you say you were concerned that it would not remain effective?

INSPECTOR FINN:In its current form, would not remain effective.

MR SPENCE: Right?

INSPECTOR FINN:That’s corr – that’s correct, because on the 27th, it wasn’t effective - -

MR SPENCE:Right?

INSPECTOR FINN:--- - - - hence the notice.

MR SPENCE: So – so what you’re saying in your affidavit then, is incorrect?

INSPECTOR FINN:I don’t believe so.

  1. [77]
    The Respondent contends that the operative requirement is that the Applicant have an emergency response plan which 'remains' effective.
  1. [78]
    However, the anterior question to be determined by the inspector in order to enliven the power to issue an Improvement Notice is whether or not r 43(2) of the WHS Regulation has been contravened.  The inspector must have formed a reasonable belief that the section has been contravened in order to issue the Improvement Notice.
  1. [79]
    Inspector Finn was not able to articulate in any meaningful way why the Applicant's emergency plan was not effective. He was unable in his evidence to identify with any degree of clarity a contravention r 43(2) of the WHS Regulation.  When asked why the PERP was not effective, he merely replied "hence the reason for the Improvement Notice". In my view, what he said in his affidavit was that as at 27 September 2019 the PERP was effective but would not be so on 1 October 2019 because it did not specifically refer to fire hose reels.
  1. [80]
    Inspector Finn in issuing the Improvement Notice has, in my opinion, misdirected himself by referring to an alleged breach of E1.9 of the NCC.  In doing so, he has focused his attention on provisions relating to the NCC which, on his own evidence does not have application to the WHS Act.
  1. [81]
    The NCC is given legal effect in Queensland by the Building Act 1975 (Qld). Compliance with the NCC is the responsibility of the QBCC under the Queensland Building and Construction Commission Act 1991 (Qld).  The Queensland Building and Construction Commission Act creates a separate and distinct regulatory regime.
  1. [82]
    The NCC sets out the requirements for the design and construction of a building in Australia, including plumbing and drainage.  Its object is to set out the minimum required level for the safety, health, amenity, accessibility and sustainability of certain buildings.
  2. [83]
    By contrast, the object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.[72]  It does this by protecting workers and other persons from harm by requiring duty holders to eliminate or minimise risk.  The WHS Act provides a framework to protect the health, safety and welfare of all workers at work and of all other people who might be affected by the work.
  1. [84]
    Inspector Finn accepted in cross-examination that there is no requirement under the WHS Act or the WHS Regulations that fire hose reels be provided as firefighting equipment on a construction site.
  1. [85]
    I accept the argument that the inspector's mind was influenced by the fact that there was non-compliance with a provision of another Act and that caused him to form a belief that the PERP was not effective.
  1. [86]
    On the material before me, I cannot accept that he could have formed the requisite belief.
  1. [87]
    The Improvement Notice is challenged on another ground.  Whilst Inspector Finn may have formed a view, it is contended by the Applicant that it was not an informed view because the inspector had failed undertake reasonable inquiries in relation to the PERP.
  1. [88]
    The response in circumstances of a fire emergency is clearly set out in part 6.4 and the Fire Emergency Flowchart at 6.4.1 of the PERP.  The PERP sets out the 'equipment available' and it is evident that the ERT is responsible for the containment of a fire.
  1. [89]
    How Inspector Finn could have formed the view that, "...those personnel attending would expect the required firefighting equipment to be operational and would rely on that equipment if necessary to fight a fire”, is unclear.  This is, in my view, particularly so having regard to the fact that no relevant inquiries were made.
  1. [90]
    The evidence of both Mr Simpkin[73] and Mr Hayes was that the PERP does not intentionally require workers to attempt to extinguish fires with hose reels, given:
  1. (a)
    a safety risk would be created to the individual fighting the fire;
  2. (b)
    the use of water may exacerbate the fire and/or create a catastrophic risk to the individual fighting the fire;
  3. (c)
    the use of fire extinguishers as a initial measure to extinguish the fire (if safe to do so) is preferred by the Applicant given extinguishers are more adept than water to suppress different types of fire (i.e. chemical and electrical); and
  4. (d)
    to ensure the safety of workers, if they cannot immediately extinguish the fire they are expected to evacuate.[74]
  1. [91]
    Mr Hayes' further evidence was that workers upon commencement at the project are advised of the existence of the fire extinguishers and the Project's emergency response process, including the function of the ERT in an emergency situation. Consistent with the PERP, the ERT are to direct and control the implementation of the Project's emergency response procedures.  The ERT are required to undergo a Warden and Fire Awareness and Extinguisher training course conducted by Chubb Training Group.  The training course has regard to the systems, procedures and available equipment at the NQ Stadium Project.[75]
  1. [92]
    Regulation 43(3) of the WHS Regulations requires that for the purpose of preparing and maintaining an emergency plan, the following relevant matters must be taken into account:
  1. (a)
    the particular work being carried out at the workplace;
  2. (b)
    the specific hazards at a workplace;
  3. (c)
    the size and location of a workplace, and
  4. (d)
    the number and composition of the workers and other people at a workplace.
  1. [93]
    In cross-examination Inspector Finn was asked:

MR SPENCE:  Yes. So, Inspector Finn, between leaving the site on the 26th of September 2019 and issuing the improvement notice after 1.15 on the 27th of September, you made no inquiries with Brian Hayes about Watpac’s consideration of the fire hydrants in the PERP, did you?

INSPECTOR FINN: No.

MR SPENCE:  And you made no inquiries with Brian Hayes about Watpac’s consideration of the fire hose reels in their PERP, did you?

INSPECTOR FINN: On what day?

MR SPENCE:  Between leaving the site on the 26th of September and issuing the notice on the 27th of September?

INSPECTOR FINN: That’s correct.

MR SPENCE:  So that’s no, you didn’t make those inquiries?

INSPECTOR FINN: No, I didn’t make any inquiries with Brian Hayes.[76]

  1. [94]
    As was observed in Growthbuilt Pty Ltd v Safe Work NSW ('Growthbuilt'),[77] an inspector is obliged to test the validity of the assumptions underpinning their beliefs of the risk posed to health and safety.  On review of the decision to issue a prohibition notice under the Work Health and Safety Act 2011 (NSW), Chief Commissioner Kite S.C. of the Industrial Relations Commission of NSW found that the inspector had failed to make reasonable inquiries of the circumstances, where the excavator and workers were actually on site for rectification works. In particular, the inspector did not call the engineer to clarify the advice before dismissing the expert's opinion that a risk did not exist.
  1. [95]
    Chief Commissioner Kite S.C. in endorsing the objective test for determining "reasonable belief" established by the High Court in George v Rockett said:

I have referred, in these reasons, to additional inquiries the Inspector may have undertaken.  I do not intend by those comments to suggest that the Inspector was required to conduct a full investigation.  That would be contrary to the authorities such as George v Rockett, Halley v Kershaw and Essential Energy.  The Inspector was not required to satisfy himself to the level of proof of a breach of the Act.  Prohibition Notices are intended to prevent potential breaches so that is beyond what is required of him.

An inspector is however required to balance the objective information available to him, and is obliged to make reasonable inquiries.  If he had attempted to make contact with the engineer and not been able to speak with him, for example, that would provide a different factual matrix than making no attempt to clarify any concerns about an expert engineer’s opinion that contradicted his view.  A similar point may be made about failing to raise with Mr Radopolous the allegation made by Ace or why the excavator was still in the excavation.  The Inspector is not bound by the responses but must take them into account in forming his view.

A reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.[78]

  1. [96]
    In my respectful view, the reasoning of the Chief Commissioner applies equally to the issuing of an Improvement Notice under s 191 of the WHS Act.
  1. [97]
    Inspector Finn had an opportunity to make reasonable inquiries when he attended the site on 25 and 26 September 2019.  What is clear on the evidence is that he made no relevant inquiries in respect of r 43(2) nor did he make inquiries regarding the matters listed in r 43(3) of the WHS Regulation.[79]
  1. [98]
    Had Inspector Finn made reasonable inquiries of the Applicant, in particular, Mr Hayes he would have been better informed to make an assessment of the currency and efficacy of the emergency plan.  He did not do so.  In failing to do so, he could not have formed a reasonable belief that r 43(2) had been contravened.
  2. [99]
    The views expressed by Inspector Finn in paragraphs 52 to 54 of his affidavit reflect, in my opinion, a fundamental misunderstanding of the Applicant's PERP and the role and responsibilities of the ERT.  That misunderstanding is reflected in the way that the Inspector has approached the issuing of the Improvement Notice.  Of course, what flows from that is that Inspector Finn could not have formed the requisite belief that there had been a contravention of r 43(2) of the WHS Regulation.
  1. [100]
    Let me briefly deal with the evidentiary objections raised by the Applicant. The Applicant made numerous objections at the commencement of the hearing in relation to the Respondent's material and much debate ensued.[80]  The objections are outlined in a schedule to the Applicant's closing submissions.[81]  However, it is fair to say that the objections relate  principally in respect of the affidavits of Ryan Alloway and Peter Auditore both dated 28 May 2020.  I have also had regard to the objections raised by the Applicant regarding the affidavit of Inspector Finn.
  1. [101]
    The Applicant's objections to the Respondent's evidence were for one or more of the following reasons:
  1. (a)
    relevance;
  1. (b)
    opinion; and/or
  1. (c)
    hearsay.
  1. [102]
    Mr Ryan Alloway is a firefighter in the employ of the Queensland Fire and Emergency Service.  He attended on site on 23 September 2019 for the purposes of assisting the QBCC.  He again attended the site on 25 September 2019 at the request of Inspector Finn to provide him with some assistance in respect of the fire emergency equipment, in particular the fire reels. Mr Alloway's affidavit is replete with opinion evidence.
  1. [103]
    As a matter of general application, a witness can only give evidence about things they know as fact.  So, in this case, Mr Alloway is a witness that can give evidence of what he saw but not what he thinks about it.  It has not been established that his evidence is that of an expert, who has qualifications or experience sufficient to give the opinion. Moreover, like any other evidence, it is only admissible if it is relevant.  In UAM Pty Ltd v Workers' Compensation Regulator,[82] the Commission cited with approval the definition of 'relevance' as espoused by Gleeson, CJ in Goldsmith v Sanderlands:[83]

The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues as defined by the pleadings.  Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.  The general rule that relevant evidence will be received is qualified by other rules based upon considerations of justice, or practicality.[84]

  1. [104]
    The evidence of Mr Alloway is in the main opinion evidence and otherwise irrelevant to the issues before the Commission.
  1. [105]
    The Applicant also objected to the evidence of Mr Auditore, a building inspector employed by the QBCC.  His affidavit evidence is relatively short in compass and relates to his attendance at the site both before and after the issuing of the Improvement Notice; and the fulfilment of his obligation as an inspector with the QBCC.
  1. [106]
    The Respondent submits that the evidence is relevant because it relates to the basis of the reasonable belief as expressed by Inspector Finn.  Specifically, during the site inspection on 23 September 2019 where an undertaking was said to be given to Mr Auditore, on behalf of the Applicant, that steps would be taken to make the fire hydrant and reels operational.  However, Mr Hayes in his evidence before the Commission denied ever giving such an undertaking.[85]
  1. [107]
    In my opinion, the evidence of Mr Auditore while performing his duties as an inspector for the QBCC is irrelevant to the issues to be determined by the Commission.

Disposition

  1. [108]
    For the reasons advanced above, I accept that there are two grounds upon which the decision of Inspector Finn to issue the Improvement Notice can be impugned.  The first relates to the argument that in issuing the Improvement Notice the inspector has misdirected himself by referring to an alleged breach of E1.9 of the NCC.  In doing so, he has focused his attention on provisions relating to the NCC which, on his own evidence does not have application to the WHS Act or Regulations; the second relates to the fact that the Inspector did not make, in the circumstances, reasonable inquiries of the Applicant in order to properly assess the currency of the emergency plan.  By failing to do so he could not have formed a reasonable belief that r 43(2) of the WHS Regulations had been contravened. As was identified in Growthbuilt:

A reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions.[86]

  1. [109]
    When the evidence is considered as a whole, there is no objective basis to support a reasonable belief for the purposes of s 191 of the WHS Act.
  1. [110]
    In deciding an application for a review, the Commission may under s 229E of the WHS Act: (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and make a decision in substitution for it; or (d) set aside the decision and return the issue to the decision-maker with directions the Commission considers appropriate.
  1. [111]
    For the reasons outlined above, the Review Decision ought to be set aside and substituted for a decision to withdraw the Improvement Notice ab initio.

Order

  1. [112]
    I make the following order:
  1. The Review Decision should be set aside and substituted for a decision to withdraw the Improvement Notice ab initio.

Footnotes

[1] Application for WHS review dated 7 November 2019, Attachment Form 13, Improvement Notice issued 27 September 2019.

[2] Ibid; Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, Attachment BH-1.

[3] Explanatory Notes, Work Health and Safety Regulation 2011 (Qld).

[4] Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, Attachment BH-2.

[5] Respondent's Outline of Argument dated 5 May 2020, [32], [35].

[6] Exhibit 3 - Affidavit of John Benedict Finn affirmed 28 May 2020, [52], [53].

[7] TR2-10, LL20-32.

[8] Respondent's Outline of Argument dated 5 May 2020, [38].

[9] Ibid [39].

[10] Applicant's Outline of Argument dated 9 April 2020, [43], [44].

[11] Ibid [48], [49].

[12] Ibid [52].

[13] Applicant's Outline of Argument dated 9 April 2020, [53]-[57].

[14] TR1-15, LL7-33.

[15] TR1-15, LL39-47.

[16] TR1-17, LL20-24.

[17] Applicant's Closing Submissions dated 7 September 2020, [12].

[18] Ibid [18]-[19].

[19] Ibid [20]-[23].

[20] Applicant's Closing Submissions dated 7 September 2020, [25]-[26].

[21] Ibid [34].

[22] Exhibit 3 - Affidavit of John Benedict Finn dated 28 May 2020, Annexure JF8.

[23] TR1-65, LL35-40.

[24] TR1-66, LL5-20.

[25] TR1-65, LL35-47.

[26] TR1-66, LL39-46.

[27] TR1-67, LL12-17.

[28] TR1-67, LL37-38.

[29] TR1-67, LL40-41.

[30] TR1-67, LL43-45.

[31] TR1-67, LL46-47.

[32] Applicant's Closing Submissions dated 7 September 2020, [38]; Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, [11]-[15].

[33] Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, Annexure BH-4.

[34] Applicant's Closing Submissions dated 7 September 2020, [39]; Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, Annexure BH-5.

[35] TR1-62, L41 - TR1-63, L5.

[36] Applicant's Closing Submissions dated 7 September 2020, [42]-[43].

[37] Ibid [45].

[38] Respondent's Closing Submissions dated 4 September 2020, [18]; Exhibit 3 - Affidavit of John Benedict Finn dated 28 May 2020.

[39] TR1-58, LL10-15.

[40] TR1-66, LL25-40.

[41] TR1-67, LL1-10.

[42] TR1-69, LL5-20.

[43] TR1-70, LL30-35.

[44] TR1-71, LL1-10.

[45] TR1-73, LL5-15.

[46] TR1-76, LL1-14.

[47] TR1-78, LL32-36.

[48] Exhibit 3 - Affidavit of John Benedict Finn dated 28 May 2020, [57]-[60].

[49] Applicant's Closing Submissions dated 7 September 2020, [47].

[50] TR1-71, L1 - TR1-72, L5.

[51] WHS Act s 160(d).

[52] DDP v Lyons (a Pseudonym) [2018] VSCA 247, [43].

[53] Applicant's Closing Submissions dated 7 September 2020, [55].

[54] Respondent's Outline of Argument dated 5 May 2020, [56].

[55] Applicant's Outline of Argument dated 9 April 2020, [48]-[59].

[56] Applicant's Outline of Argument dated 9 April 2020, [48]-[59].

[57] Applicant's Closing Submissions dated 7 September 2020, [64].

[58] Respondent's Closing Submissions dated 4 September 2020, [12].

[59] Exhibit 5 - Affidavit of Peter Auditore sworn 28 May 2020.

[60] Respondent's Closing Submissions dated 4 September 2020, [14].

[61] Ibid [15].

[62] Ibid [16].

[63] Respondent's Outline of Argument dated 4 September 2020, [56].

[64] WHS Act s 160(a).

[65] Ibid s 160(d).

[66] Ibid s 160(e).

[67] (1990) 170 CLR 104.

[68] Ibid 115-116.

[69] WHS Act s 19.

[70] Application for WHS review dated 7 November 2019, Attachment Form 13, Improvement Notice issued 27 September 2019.

[71] Exhibit 3 - Affidavit of John Benedict Finn affirmed 28 May 2020, [52]-[54].

[72] WHS Act s 3.

[73] Exhibit 2 - Affidavit of Justin Russell Simpkin dated 25 May 2020, [6].

[74] Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, [16].

[75] Exhibit 1 - Affidavit of Brian Edward Hayes affirmed 25 May 2020, [15].

[76] TR1-74, LL1-13.

[77] [2018] NSWIR Comm 1002.

[78] Ibid [94]-[96].

[79] TR1-67, LL 29-47.

[80] TR1-2 - TR1-14.

[81] Applicant's Closing Submissions dated 7 September 2020, Annexure A.

[82] [2015] QIRC 209.

[83] [2002] HCA 31; (2002) 76 ALJR 1024.

[84] [2015] QIRC 209, [63].

[85] TR1-39, LL43-46.

[86] [2018] NSWIR Comm 1002, [96].

Close

Editorial Notes

  • Published Case Name:

    Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    Watpac Construction Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2021] QIRC 257

  • Court:

    QIRC

  • Judge(s):

    Member O'Connor VP

  • Date:

    27 Jul 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

Case NameFull CitationFrequency
DDP v Lyons (a Pseudonym) [2018] VSCA 247
2 citations
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Cite 1 - [2018] VSCA 247
Cite 2 - [2018] VSCA 247
George v Rockett (1990) 170 CLR 104
3 citations
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Cite 1 - (1990) 170 CLR 104
Cite 2 - (1990) 170 CLR 104
Cite 3 - (1990) 170 CLR 104
Goldsmith v Sandilands [2002] HCA 31
2 citations
Jump To
Cite 1 - [2002] HCA 31
Cite 2 - [2002] HCA 31
Goldsmith v Sandilands (2002) 76 ALJR 1024
2 citations
Jump To
Cite 1 - (2002) 76 ALJR 1024
Cite 2 - (2002) 76 ALJR 1024
Growthbuilt Pty Ltd v Safe Work NSW [2018] NSWIRComm 1002
4 citations
Jump To
Cite 1 - [2018] NSWIRComm 1002
Cite 2 - [2018] NSWIRComm 1002
Cite 3 - [2018] NSWIRComm 1002
Cite 4 - [2018] NSWIRComm 1002
UAM Pty Ltd v The Workers' Compensation Regulator [2015] QIRC 209
3 citations
Jump To
Cite 1 - [2015] QIRC 209
Cite 2 - [2015] QIRC 209
Cite 3 - [2015] QIRC 209

Cases Citing

Case NameFull CitationFrequency
Shape-Cut Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 4902 citations
1

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