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  4. MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 - [2023] QIRC 186

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MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2023] QIRC 186

MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2023] QIRC 186

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2023] QIRC 186

PARTIES:

MPG Constructions Brisbane Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO.:

WHS/2022/81

PROCEEDING:

Application for external review

DELIVERED ON:

20 June 2023

HEARING DATE:

On the papers

MEMBER:

Merrell DP

DATES OF WRITTEN

SUBMISSIONS:

Applicant's written submissions filed on 10 February 2023 and on 2 March 2023 and Respondent's written submissions filed on  24 February 2023

ORDER:

The order contained in paragraph [81] of these reasons for decision

CATCHWORDS:

WORK HEALTH AND SAFETY – DUTIES AND LIABILITIES – INVESTIGATIONS AND SECURING COMPLIANCE – Applicant was the principal contractor of a multi-level commercial construction project situated at 152 Wharf Street, Spring Hill – workers on the construction project were engaged by the Applicant directly or were caused to be engaged by the Applicant through subcontractors – pt 5, div 3 of the Work Health and Safety Act 2011 deals with the election for one or more health and safety representatives to represent workers who carry out work for a business or undertaking – determination of work groups required for such elections – subsequent decision by Inspector, appointed under s 54 of the Work Health and Safety Act 2011, that there should be a work group consisting of plasterers and glaziers and another work group consisting of workers engaged in concreting works – Applicant sought internal review of decision of Inspector – decision of Inspector confirmed on internal review – Applicant seeks external review of the internal review decision – whether or not an Inspector could be validly appointed, pursuant to s 54 of the Work Health and Safety Act 2011, to decide matters mentioned in s 52(3) of the Work Health and Safety Act 2011 in relation to multiple–business work groups – whether or not an Inspector so appointed could validly decide, pursuant to s 52(3) of the Work Health and Safety Act 2011, the number and composition of work groups in relation to multiple–business work groups – whether or not the decision of the Inspector should be confirmed or set aside – Regulator had no power to appoint an Inspector to make the decision that was made – Inspector had no power to make the decision made – review decision set aside and a decision is substituted for the decision, namely, that no decision can be  made in relation to the multi-level commercial construction project situated at 152 Wharf Street, Spring Hill

LEGISLATION:

Acts Interpretation Act 1954, s 14A and sch 1

Work Health and Safety Act 2011, s 50, s 51, s 52, s 54, s 56, s 229B, s 229D and s 229E

Work Health and Safety Regulation 2011, s 17

CASES:

Capuano v Q-Comp [2004] QSC 333; [2005] 1 Qd R 232

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Dalliston v Taylor & Anor [2015] ICQ 17; (2015) 251 IR 3

Elgas Ltd v Safework NSW (No. 3) [2022] NSWIRComm 1068

Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61

Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v A2 [2019] HCA 35; (2019) 269 CLR 507

Sydney Trains v Safework NSW [2017] NSWIRComm 1009; (2017) 266 IR 276

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Reasons for Decision

Introduction and background

  1. [1]
    MPG Constructions Brisbane Pty Ltd ('the Applicant') was the principal contractor of a multi-level commercial construction project situated at 152 Wharf Street, Spring Hill ('the workplace').
  1. [2]
    Workers at the workplace were engaged either directly by the Applicant or were caused to be engaged by the Applicant as subcontractors.
  1. [3]
    Part 5, div 3 of the Work Health and Safety Act 2011 ('the WHS Act') deals with the election for one or more health and safety representatives ('HSRs') to represent workers who carry out work for a business or undertaking. Part 5, div 3, sub-div 2 of the WHS Act deals with the determination of work groups to facilitate the representation of workers in a work group by one or more HSRs and relevantly contains s 52 and s 54.
  1. [4]
    Section 52(3)(a) of the WHS Act provides that a purpose of the negotiations is to determine the number and composition of work groups to be represented by HSRs.             Sections 54(1) and 54(2)(a) of the WHS Act provide that where there has been a failure of negotiations, any person who is or would be a party to the negotiations may ask the Regulator under the WHS Act ('the Regulator') to appoint an Inspector to decide, amongst other matters, the number and composition of work groups to be represented by HSRs.
  1. [5]
    Part 5, div 3, sub-div 3 of the WHS Act deals with the negotiation and determination of work groups for workers carrying out work for two or more persons conducting businesses or undertakings at one or more workplaces. That sub-division contains s 56(3) which relevantly provides that if agreement cannot be reached on a matter relating to the determination of a work group within a reasonable time after negotiations commence under that subdivision, any party to the negotiations may ask the Regulator to appoint an Inspector to assist the negotiations in relation to that matter.
  1. [6]
    Section 17 of the Work Health and Safety Regulation 2011 ('the Regulation') prescribes the matters that must be taken into account in the negotiations and determination of work groups under pt 5, div 3, sub-divs 2 and 3 of the WHS Act.
  1. [7]
    On 7 January 2022, the Regulator appointed an Inspector under s 54 of the WHS Act to decide the matters mentioned in s 52 of the WHS Act.[1] On 29 March 2022, the Inspector made a decision about the matters referred to in s 52(3)(a)-(d) of the WHS Act, including that there should be two work groups at the workplace and that there should be one HSR elected for each work group ('the decision').[2]
  1. [8]
    By internal review decision dated 13 April 2022, the Office of Industrial Relations confirmed the decision ('the internal review decision').  By application filed on              27 May 2022, the Applicant applied to the Commission for an external review of the internal review decision pursuant to s 229B of the WHS Act.
  1. [9]
    The Applicant contends that:
  • where the workers at one or more workplaces carry out work for two or more persons conducting businesses or undertakings ('PCBUs'), such as subcontractors as well as a principal contractor, work groups may only be determined by negotiation and agreement under s 56 of the WHS Act between the multiple businesses and the workers;
  • where agreement cannot be reached on a matter relating to the determination of a work group within a reasonable time after negotiations commence, a party to the negotiations may only ask the Regulator to appoint an Inspector under s 56(3) of the WHS Act to assist the negotiations in relation to that matter;
  • the power to decide matters in accordance with s 54(1) of the WHS Act (which appears in pt 5, div 3, sub-div 2 of the WHS Act), is limited to single business work groups and not multiple-business work groups, '… which appears in Subdivision 3'; and
  • in the circumstances that presented themselves at the workplace, the Regulator may not appoint an Inspector under s 54(1) of the WHS Act to decide the matters mentioned in s 52(3) of the WHS Act, including the determination of the number and composition of work groups, in relation to multiple-business work groups.[3]
  1. [10]
    The Applicant goes on to contend that if it is correct in its contentions, then:
  • the Regulator had no power to appoint an Inspector under s 54(1) of the WHS Act and the Inspector had no power to determine the matters mentioned in s 52(3) of the WHS Act in relation to the multiple-business work groups; and
  • the decision of the Inspector about the number and composition of work groups must be set aside and cancelled.[4]
  1. [11]
    The Regulator contends that:
  • notwithstanding that workers at a workplace may be engaged to perform work by and for a number of PCBUs (including subcontractors as well as the principal contractor), work groups may be formed by negotiation between those workers and the principal contractor alone pursuant to s 54(1) of the WHS Act;
  • the work groups may be formed for the specific matters relating to the principal contractor, without the subcontractor PCBUs being a party to such negotiations; and
  • if there is a failure of negotiations, any person who is or would be a party to the negotiations may ask the Regulator to appoint an Inspector to decide the matters mentioned in s 52(3) of the WHS Act, including the determination of the number and composition of work groups.[5]
  1. [12]
    The Regulator goes on to contend that if it is correct in its contentions then:
  • at the request of a party to the negotiations, including the worker, the Regulator had power to appoint, and validly appointed an Inspector under s 54(1) of the WHS Act, and the Inspector had the power to determine and validly determined the matters mentioned in s 52(3) of the WHS Act; and
  • the decision of the Inspector must be confirmed.[6]
  1. [13]
    Having regard to the decision and to the parties' contentions, in conducting the external review of the internal review decision, the question for my determination is where the workers at one or more workplaces carry out work for two or more PCBUs, is the negotiation for and determination of work groups, for the purposes of pt 5, div 3 of the WHS Act, governed by pt 5, div 3, sub-div 2 of the WHS Act or by pt 5, div 3, sub‑div 3 of the WHS Act?
  1. [14]
    If the answer to the question is that the negotiations for and determination of work groups was governed by pt 5, div 3, sub-div 2 of the WHS Act, then the Inspector was validly appointed by the Regulator and the Inspector had the power to make the decision, such that the internal review decision should be confirmed.
  1. [15]
    Alternatively, if the answer to the question is that the negotiations for and determination of work groups was governed by pt 5, div 3, sub-div 3 of the WHS Act, then the Inspector was not validly appointed by the Regulator and the Inspector had no power to make the decision, such that the internal review decision should be set aside and another decision made in substitution for it.
  1. [16]
    On 29 November 2022, the parties filed an agreed statement of facts and contentions ('the agreed facts and contentions'). By further agreement between the parties, the matter is to be determined by me on the papers having regard to the agreed facts and contentions and the written submissions filed by the parties.
  1. [17]
    For the reasons that follow, my view is that, in the circumstances of the present case:
  • the Regulator had no power to appoint an Inspector under s 54(1) of the WHS Act such the decision was not validly made; and
  • the internal review decision must be set aside and a decision substituted for it, namely, that no decision can be made in relation to the workplace of the multi-level commercial construction project situated at 152 Wharf Street, Spring Hill.

The agreed facts

  1. [18]
    Workers at the workplace were either engaged by the Applicant directly, or were caused to be engaged by the Applicant through PCBUs as subcontractors. Those workers, as a consequence, were carrying out work for two or more PCBUs at the workplace at all relevant times.[7]
  1. [19]
    Throughout 2021, workers were conducting negotiations with the Applicant for the formation of work groups under pt 5, div 3, sub-div 2 of the WHS Act to facilitate the representation of workers in the work groups by HSRs. On 15 October 2021, a relevant worker, Mr Steven Amies, requested the Regulator to appoint an Inspector to assist in the negotiations in relation to '… the formation of work groups for multiple businesses and their workers at the workplace pursuant to section 56(3) of the Act.'[8]
  1. [20]
    Subsequently, an Inspector was appointed by the delegate of the Regulator under s 54(1) of the WHS Act for the purpose of deciding the matters contained in s 52(3) of the WHS Act.
  1. [21]
    A decision was then made on 17 November 2021 by the Inspector about the matters contained in s 52(3) of the WHS Act. However, that decision was the subject of an internal review and was set aside '… and cancelled.' This was because the appointment of the Inspector to decide matters under s 52 of the WHS Act '… was ultra vires the power of the Regulator under the' WHS Act for the reason that the request made by the relevant worker was for the appointment of an Inspector for the purpose of assisting with negotiations under s 56(3) of the WHS Act and not for the appointment of an Inspector for the purposes of s 54 of the WHS Act.[9]
  1. [22]
    On 7 January 2022, Mr Amies sent an email to the Director, Construction Compliance and Field Services of the Office of Industrial Relations, which stated:

I have previously made a request for the regulator to appoint an inspector under section 56 of the Work Health and Safety Act 2011.

There has been a failure of negotiations between workers and MPG at the MPG project on Wharf St Spring Hill about the formation of a multi trade work group at the site. I am a party to the negotiations.

I request that the regulator appoint an inspector for the purposes of section 54 of the Work Health and Safety Act 2011.[10]

  1. [23]
    Subsequently, on 7 January 2022, the Regulator appointed an Inspector for the purposes of s 54 of the WHS Act to decide the matters mentioned in s 52 of the WHS Act.[11]
  1. [24]
    The Inspector facilitated negotiations between the workers and the Applicant and conducted ballots of workers and surveyed work supervisors through to March 2022, having regard to the matters provided for in s 17 of the Regulation.[12]
  1. [25]
    Ultimately, on 29 March 2022, the Inspector made the decision which, in respect to the matters referred to in s 52(3)(a)-(d) of the WHS Act, was that:
  • there should be a work group consisting of plasterers and glaziers, restricted to matters that affect their work;
  • there should be a work group consisting of workers engaged in concreting works, restricted to the matters that affect their work;
  • there should be one HSR elected for each of the work groups;
  • the work groups apply to the workplace; and
  • the work groups apply to the '… Morris Property Group only.'[13]

The applicable legal principles on external review

  1. [26]
    The Applicant in its written submissions, having regard to s 229D(2) of the WHS Act and to the relevant authorities,[14] set out the legal principles to be applied by the Commission in conducting an external review of the internal review decision.[15] There is no dispute by the Regulator about the legal principles referred to by the Applicant.[16]
  1. [27]
    Section 229D(2) of the WHS Act provides that an application for a review is to be dealt with by way of rehearing, unaffected by the decision. The consequence is that:
  • the Applicant does not bear the onus of proof; and
  • the matter should be determined on a de novo basis, with the Commission coming to the decision that it thinks is correct and preferable in relation to the decision made by the Inspector having regard to the material before it.[17]

The relevant legislative provisions

  1. [28]
    As referred to earlier, pt 5, div 3 of the WHS Act deals with the election of HSRs. Sub‑division 1 of that division provides that a worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more HSRs to represent workers who carry out work for the business or undertaking.[18]
  1. [29]
    Part 5, div 3, sub-div 2 then relevantly provides:

Subdivision 2  Determination of work groups

51  Determination of work groups

  1. (1)
     If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of 1 or more work groups of workers.
  1. (2)
     The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives.
  1. (3)
     A work group may be determined for workers at 1 or more workplaces.

52  Negotiations for agreement for work group

  1. (1)
     A work group is to be determined by negotiation and agreement between–
  1. (a)
     the person conducting the business or undertaking; and
  1. (b)
     the workers who will form the work group or their representatives.
  1. (2)
     The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50.
  1. (3)
     The purpose of the negotiations is to determine–
  1. (a)
     the number and composition of work groups to be represented by health and safety representatives; and
  1. (b)
     the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and
  1. (c)
     the workplace or workplaces to which the work groups will apply; and
  1. (d)
     the businesses or undertakings to which the work groups will apply.
  1. (4)
     The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.
  1. (5)
     The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the

representative from those negotiations.

Maximum penalty–100 penalty units.

  1. (6)
     A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups.

…

54  Failure of negotiations

  1. (1)
     If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.
  1. (2)
     An inspector appointed under subsection (1) may decide–
  1. (a)
     the matters mentioned in section 52(3), or any of those matters which is the subject of the proposed variation (as the case requires); or
  1. (b)
     that work groups should not be determined or that the agreement should not be varied (as the case requires).
  1. [30]
    Part 5, div 3, sub-div 3 then relevantly provides:

Subdivision 3  Multiple-business work groups

55  Determination of work groups of multiple businesses

  1. (1)
     Work groups may be determined for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces.
  1. (2)
     The particulars of the work groups are to be determined by negotiation and agreement, under section 56, between each of the persons conducting the businesses or undertakings and the workers.
  1. (3)
     The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.
  1. (4)
     The determination of 1 or more work groups under this subdivision does not–
  1. (a)
     prevent the determination under this subdivision or subdivision 2 of any other work group of the workers concerned; or
  1. (b)
     affect any work groups of those workers that have already been determined under this subdivision or subdivision 2.

56  Negotiation of agreement for work groups of multiple businesses

  1. (1)
     Negotiations concerning work groups under this subdivision must be directed only at the following–
  1. (a)
     the number and composition of work groups to be represented by health and safety representatives;
  1. (b)
     the number of health and safety representatives and deputy health and safety representatives (if any) for each work group;
  1. (c)
     the workplace or workplaces to which the work groups will apply;
  1. (d)
     the businesses or undertakings to which the work groups will apply.
  1. (2)
     A person conducting a business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.

Maximum penalty-100 penalty units.

  1. (3)
     If agreement can not be reached on a matter relating to the determination of a work group (or a variation of an agreement) within a reasonable time after negotiations commence under this subdivision, any party to the negotiations may ask the regulator to appoint an inspector to assist the negotiations in relation to that matter.
  1. (4)
     A regulation may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements.

The parties' submissions

The Applicant's submissions

  1. [31]
    In summary, the Applicant relevantly submits that:
  • there are material differences in the powers of an Inspector if they are requested to provide assistance under pt 5, div 3, sub-div 2 or sub-div 3 of the WHS Act;
  • where the request is made pursuant to pt 5, div 3, sub-div 2 of the WHS Act, which deals with single business work groups, the Inspector so appointed under s 54(1) of the WHS Act may, pursuant to s 54(2) of the WHS Act, decide the matters mentioned in s 52(3) of the WHS Act;
  • where the request is made pursuant to pt 5, div 3, sub-div 3 of the WHS Act, if an agreement cannot be reached on the matter relating to the determination of a multiple-business work group, a party may ask the Regulator, pursuant to s 56(3) of the WHS Act, to appoint an Inspector to assist the negotiations in relation to the matter, such that in relation to the determination of a multiple–business work group, an Inspector does not have an equivalent power under pt 5, div 3, sub‑div 3 of the WHS Act to decide matters (as is the case in respect of pt 5, div 3, sub‑div 2 of the WHS Act).[19]
  1. [32]
    Indeed, the Applicant submitted:
  1. 19.
    Simply put, it is submitted that if multiple businesses are involved in the determination of workgroups, Subdivision 3 applies to the exclusion of Subdivision 2. It was acknowledged by Mr Amies in the first request that Subdivision 3 applied as the negotiations involved multiple businesses.
  1. [33]
    The Applicant then submits that:
  • the second request made by Mr Amies on 7 January 2022 for an Inspector to be appointed pursuant to s 56 of the WHS Act acknowledges that the issue relates to the formation of a 'multi trade work group at the site', but the reference in that request to s 54 of the WHS Act was erroneous in that the negotiations related to the same proposed work groups and parties as Mr Amies' first request (made on 15 October 2021);[20]
  • it is agreed between the parties that the Regulator accepts that the relevant work groups that are the subject of the decision involve workers who carry out work for two or more PCBUs;[21]
  • the Regulator contends that irrespective of whether or not multiple businesses are involved in the formation of work groups, a worker, such as Mr Amies, can pick whether to request the assistance of an Inspector under either pt 5, div 3, sub‑div 2 or pt 5, div 3, sub-div 3 of the WHS Act, such that, for example, a worker can choose to exclude their employer and negotiate directly with a principal contractor;[22]
  • in such a case, an Inspector would have the power to decide the formation of work groups, whereas an Inspector would not have such power if the Inspector was requested to assist under pt 5, div 3, sub-div 3 of the WHS Act, being a result which is contrary to the objectives of the WHS Act and which would result in pt 5, div 3, sub-div 3 of the WHS Act having no utility;[23]
  • section 55(3) of the WHS Act is against the Regulator's contention in that it provides that the particulars of the work groups are to be determined by negotiation and agreement under s 56, between each of the persons conducting the businesses or undertakings and the workers;[24]
  • it is clear that the work groups the subject of the decision span the businesses or undertaking of two or more persons in that one of the work groups consisted of plasterers and glaziers who were workers for other contractors, namely, 'North 23' and 'Raised';[25] and
  • multiple-business work groups can only be determined by agreement between the relevant parties, such that a subcontractor who is a PCBU of the relevant workers cannot be excluded from negotiations.[26]
  1. [34]
    The Applicant concluded by submitting:
  1. 32.
    Putting to the side the issues in relation to the misapplication of Subdivision 2, s 54(1) entitles a person who is or would be a party to the negotiations to ask the Regulator to appoint an Inspector if there has been a failure of negotiations.
  1. [35]
    The Applicant then went on to make submissions about why the decision of the Inspector is inconsistent with the purported communication of the Inspector's decision to the Applicant which, as the Applicant submits, renders the decision a nullity.[27]

The Regulator's submissions

  1. [36]
    In summary, the Regulator submits that:
  • workers who are engaged to perform work for more than one PCBU at a workplace, for instance, workers engaged by subcontractors to perform work at a construction workplace, may form work groups with the principal contractor alone under           s 52 of the WHS Act, without subcontractors for whom they are directly engaged being parties to such agreement;[28]
  • similarly, workers engaged by subcontractors at the construction workplace may form work groups with the individual subcontractor for whom they are directly engaged under s 52 of the WHS Act, without the principal contractor or other subcontractors being party to such agreement;[29]
  • the activities of workers engaged by a subcontractor at a construction workplace are directly influenced or directed by the principal contractor while at work in the business or undertaking of the principal contractor such that, the Applicant, on the facts of the present case, has a primary duty of care, under s 19(1) of the WHS Act, for those workers of the subcontractors;[30] and
  • having regard to s 50 of the WHS Act, a worker directly engaged by a subcontractor may ask the principal contractor under that section to facilitate the conduct of an election for HSRs to represent workers engaged by subcontractors independently of any arrangements which might be in place with the subcontractor employers.[31]
  1. [37]
    The Regulator then submits:
  1. 13.
    Section 52(3) of the WHS Act provides:

The purpose of the negotiations is to determine–

  1. (a)
     the number and composition of work groups to be represented by health and safety representatives; and
  1. (b)
     the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and
  1. (c)
     the workplace or workplaces to which the work groups will apply; and
  1. (d)
     the businesses or undertakings to which the work groups will apply.
  1. 14.
    If the Applicant's contention is correct and workgroups may only be negotiated and formed under section 52 of the WHS Act between workers who are only engaged in a workplace or workplaces by one PCBU only, then Section 52(3)(d) of the WHS Act would be redundant.
  1. 15.
    The intent of the legislature must have been to give section 52(3)(d) some purpose and import, and the Respondent submits that legislative intent can only be that this subsection applies to situations such as in the present case where the workers from [sic] directly engaged by one or more PCBUs seek to negotiate and form work groups with one PCBU only, such as the Applicant in its capacity as a principal contractor.
  1. 16.
    Where there is a failure of negotiations between the one PCBU and the workers, section 54 provides the mechanism for the appointment of an Inspector to decide the matters mentioned in section 52(3).
  1. …
  1. 20.
    The Applicant therefore contends that where workers are engaged by more than one PCBU at a workplace or workplace [sic] and there is a failure of negotiations which cannot be resolved (even with the assistance of an Inspector), the workers are denied the opportunity to form workgroups and thereby to elect health and safety representatives under Part 5 Subdivision 4 of the WHS Act.
  1. 21.
    If the contention of the Applicant is upheld, those workers who are engaged to perform work by one or more PCBU [sic] are denied the ability to form work groups and elect health and safety representatives where one or more of those PCBUs fails or refuses to negotiate the formation of work groups in good faith, or otherwise fail to reach agreement with the workers and all of the other parties to the negotiation.
  1. …
  1. 34.
    The Applicant asserts at paragraph [19] of its outline of submissions that subdivision 3 of Division 3 of Part 5 of the Act operates to the exclusion of subdivision 2. The Respondent submits to the contrary, that if that had been the intention of the legislature, then such exclusion would have been clearly expressed. The Act does not operate so as to preclude the formation of workgroups of workers with individual PCBUs at the workplace, notwithstanding that other PCBUs may have concurrent duties to those workers at the workplace.
  1. 35.
    A principal contractor has specific overarching responsibilities at a construction workplace as set forth in paragraphs [27]-[30] above, in respect of which workers at the workplace are entitled to be represented by and consulted with through workgroups and health and safety representatives appointed exclusively in respect of those duties held by the principal contractor. As previously submitted, if subdivision [sic] of Division 3 of Part 5 of the WHS Act only operated where one PCBU held duties with respect to the workers at the workplace, then section 52(3)(d) which references negotiations to determine 'the businesses or undertakings to which the work groups will apply' would be redundant.
  1. [38]
    The Regulator then made submissions as to why, in any event, the decision made by the Inspector complied with s 52(3) of the WHS Act.[32]

The construction of pt 5, div 3, sub-divs 2 and 3 of the WHS Act

  1. [39]
    As is evident from the parties' submissions, the external review of the internal review decision requires the construction of pt 5, div 3, sub-divs 2 and 3 of the WHS Act.
  1. [40]
    In SZTAL v Minister for Immigration and Border Protection,[33] Kiefel CJ, Nettle and Gordon JJ summarised the modern approach to statutory construction:
  1. 14
    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[34]
  1. [41]
    Consideration of the context includes considering the surrounding provisions, what may be drawn from other aspects of the statute, considering the statute as a whole and it extends to the mischief which it may be seen that the statute is intended to remedy.[35]
  1. [42]
    The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[36] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[37] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[38]
  1. [43]
    However, it is still the fundamental duty of a court to give meaning to the legislative command according to the terms in which it is been expressed and legislative history and references to pre-existing law should not deflect from the duty of resolving an issue of statutory construction which ultimately is always a text-based activity.[39]
  2. [44]
    Pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act (which includes its policy objective)[40] is to be preferred to any other interpretation.
  1. [45]
    In my view, having regard to the text used in pt 5, div 3, sub-div 2 of the WHS Act, including, in particular, the text contained in s 51 and s 52, it is apparent that the determination of work groups, for the purposes of the election of HSRs, does not concern the circumstance where there are multiple–business work groups or, in other words, more than one PCBU.
  1. [46]
    For example, s 51(1) of the WHS Act provides that if a relevant request is made under s 50, '… the person conducting the business or undertaking' must facilitate the determination of one or more work groups of workers.
  1. [47]
    Similarly, s 52(1) of the WHS Act provides that a work group is to be determined by negotiation and agreement between '… the person conducting the business or undertaking' and the workers who will form the work group or their representatives. In the same vein, s 52(2) provides that '… the person conducting the business or undertaking' must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under s 50 of the WHS Act.
  1. [48]
    Having regard to the text of pt 5, div 3 of the WHS Act as a whole, it is my view that the purpose of pt 5, div 3, sub-div 2 of the WHS Act is, relevantly to the present case, to facilitate the determination of the number and composition of work groups to be represented by HSRs, the number of HSRs to be elected, the workplace or workplaces to which the work groups will apply, and the businesses or undertakings to which the work groups will apply, where there is only one PCBU.
  1. [49]
    In those circumstances, the construction that best achieves the purpose of                                pt 5, div 3, sub‑div 2 of the WHS Act is that:
  • where negotiations about, for example, the number and composition of work groups to be represented by HSRs, break down between the one PCBU and the workers (who will form the work group or their representatives) then, pursuant to s 54(1) of the WHS Act, a party to the negotiations may ask the Regulator to appoint an Inspector for the purposes of s 54; and
  • an Inspector so appointed may decide that matter.
  1. [50]
    However, the text used in pt 5, div 3, sub-div 3 of the WHS Act expressly concerns a separate set of factual circumstances to those dealt with in pt 5, div 3, sub-div 2 of the WHS Act.
  1. [51]
    To begin, the heading to pt 5, div 3, sub-div 3 is 'Multiple-business work groups'. That phrase is not defined in the Dictionary to the WHS Act. However, its clear meaning is derived from s 55(1) of the WHS Act which provides that work groups may be determined for workers carrying out work for two or more persons conducting businesses or undertakings at one or more workplaces.
  1. [52]
    Similarly, s 55(2) of the WHS Act provides that the particulars of the work groups are to be determined by negotiation and agreement, under s 56 of the WHS Act, between each of the persons conducting the businesses or undertakings and the workers.
  1. [53]
    Section 56(1) of the WHS Act then goes on to specify the matters to which negotiations under pt 5, div 3, sub-div 3 are directed.
  1. [54]
    By contrast to the scheme in pt 5, div 3, sub-div 2, s 56(3) of the WHS Act relevantly  provides that if agreement cannot be reached on a matter '… relating to the determination of a work group…within a reasonable time after negotiations commence under'                              pt 5, div 3, sub-div 3, any party to the negotiations may ask the Regulator to appoint an Inspector, not to decide the identified matter, but to assist the negotiations in relation to that matter.
  1. [55]
    The circumstances in which a party to the negotiations regarding multiple-business work groups can ask the Regulator to appoint an Inspector is more limited than compared to where there is one PCBU. In respect of the former, a party to the negotiations may only ask the Regulator to appoint an Inspector if agreement cannot be reached on a matter relating to the determination of a work group, or a variation of an agreement, within a reasonable time after negotiations commence. In respect of the latter, a person who is or would be a party to the negotiations may ask the Regulator to appoint an Inspector in respect of a failure of negotiations any or all the matters mentioned in s 52(3) of the            WHS Act.
  1. [56]
    Further, regarding multiple-business work groups, the role of an Inspector is more limited than compared to the circumstance where there is one PCBU. In respect of the former, an Inspector so appointed by the Regulator can only assist the negotiations where agreement cannot be reached on a matter relating to the determination of a work group, or a variation of an agreement.  In respect of the latter, an Inspector so appointed may decide the matters mentioned in s 52(3) of the WHS Act or any of those matters which is the subject of a proposed variation; or an Inspector so appointed may decide that work groups should not be determined or that an agreement should not be varied.
  1. [57]
    True it is, as submitted by the Regulator, that s 52(3)(d) of the WHS Act provides that a purpose of the negotiations includes the determination of '… the businesses or undertakings to which the work groups will apply.' The same text is contained in s 56(1)(d) of the WHS Act in respect of multiple–business work groups.
  1. [58]
    However, my opinion is that the words contained in s 52(3)(d) of the WHS Act cannot have the effect of ousting the clear intention of the legislature in respect of the narrow circumstances in which a party to negotiations for a multiple–business work group can request the Regulator to appoint an Inspector. Similarly, the words contained in s 52(3)(d) of the WHS Act cannot oust the narrow role of the Inspector - where an agreement cannot be reached on a matter relating to the determination of a work group for a multiple–business work group - namely, to assist the negotiations in relation to that matter.
  1. [59]
    I do not accept the Regulator's submissions that if the Applicant's general contention is correct, then s 52(3)(d) of the WHS Act '… would be redundant.'
  1. [60]
    There are two reasons for this.
  1. [61]
    First, s 52(3) of the WHS Act sets out the purpose of the negotiations. The text of s 52(3)(a) of the WHS Act contemplates that there may be more than one work group negotiated. However, that is clearly in the context of there being only one PCBU.
  1. [62]
    Secondly, the reference in s 52(3)(d) of the WHS Act, that a purpose of the negotiations is to determine '… the businesses or undertakings to which the work groups will apply', clearly may have application where there is one PCBU. In my view, s 52(3)(d) of the WHS Act contemplates that one PCBU may be operating more than one business or undertaking to which the work groups (to be represented by one or more HSRs) will apply. Exactly the same may be said in respect of s 52(3)(c), which provides that a purpose of the negotiations is to determine '… the workplace or workplaces to which the work groups will apply.' Again, it may be that the one PCBU may be operating in more than one workplace in respect of which the work groups (to be represented by one or more HSRs) will apply.
  1. [63]
    For these reasons, I reject the Regulator's submissions that the purpose of s 52(3)(d) of the WHS Act is that it applies to situations such as the present; that is, where workers are engaged by two or more PCBUs and seek to negotiate and form work groups with one PCBU, such as the Applicant, in its capacity as a principal contractor. If that was the case, then that purpose would have been clearly expressed in pt 5, div 3, sub-div 2 of the WHS Act. It is not. The text and purpose of pt 5, div 3, sub-div 2 of the WHS Act is against the Regulator's submissions.
  1. [64]
    Where workers are carrying out work for two or more PCBUs at one or more workplaces, then any request to appoint an Inspector about a matter, about which an Inspector can be appointed, and the function of an Inspector when so appointed, is governed by pt 5, div 3, sub-div 3 of the WHS Act and not pt 5, div 3, sub-div 2 of the WHS Act.
  1. [65]
    The Regulator submitted that if the contention of the Applicant was upheld, those workers who are engaged to perform work by one or more PCBUs would be denied the ability to form work groups and elect HSRs where one or more of those PCBUs failed or refused to negotiate the formation of work groups in good faith, or otherwise failed to reach agreement with the workers and all of the other parties to the negotiation.
  1. [66]
    I cannot accept this submission for two reasons.
  1. [67]
    First, for the reasons given above, pt 5, div 3, sub-div 2 of the WHS Act, and the provisions which govern the determination of work groups contained in that sub‑division, only concern the circumstances where there is one PCBU.
  1. [68]
    Secondly, the fact that pt 5, div 3, sub-div 2 of the WHS Act does not apply where there are multiple–business work groups, cannot logically result in a conclusion that workers who are engaged to perform work by two or more PCBUs would be denied the ability to form work groups and elect HSRs where one or more of those PCBUs fails or refuses to negotiate the formation of work groups in good faith, or otherwise fails to reach agreement with the workers and other parties. This is because pt 5, div 3, sub-div 3 of the WHS Act provides for the mechanism for the determination of multiple–business work groups, including where agreement cannot be reached on a matter relating to the determination of a work group. This is through the appointment of an Inspector to assist the negotiations in relation to that matter.
  1. [69]
    In any event, when negotiations break down, the ability to form work groups and elect HSRs is not guaranteed by the application of s 54(2) of the WHS Act. Section 54(2) of the WHS Act provides that an Inspector appointed under s 54(1) of the WHS Act may relevantly decide the matters mentioned in s 52(3) of the WHS Act, as the case requires, or decide that work groups should not be determined, as the case requires.
  1. [70]
    Furthermore, while it is the case that the Applicant had a primary duty of care in respect of the workers of subcontractors at the workplace, that fact cannot oust the clear text and purpose of pt 5, div 3, sub-div 2 of the WHS Act. Indeed, where workers are carrying out work for two or more PCBUs at one or more workplaces, pt 5, div 3, sub-div 3 of the WHS Act provides the mechanisms for the determination of work groups in such circumstances which, no doubt, would contribute to a principal contractor, such as the Applicant, ensuring, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by the principal contractor.

The application of pt 5, div 3, sub-div 3 of the WHS Act to the agreed facts

  1. [71]
    It is an agreed fact that, in respect of the workplace the subject of the present proceeding, the workers were carrying out work for two or more PCBUs.[41]
  1. [72]
    Given those facts, the Inspector appointed by the Regulator on 7 January 2022:
  • could only have been appointed pursuant to s 56(3) of the WHS Act and not pursuant to s 54(1) of the WHS Act; and, as a consequence
  • had no power to decide the matters mentioned in s 52(3) of the WHS Act.
  1. [73]
    The decision made by the Inspector, as conveyed on 29 March 2022, was beyond the power of the Inspector to make.
  1. [74]
    In these circumstances, the internal review decision must be set aside.
  1. [75]
    The phrase '… make a decision in substitution for it ' in s 229E(1)(c) of the WHS Act is to be interpreted so that the substituted decision concerns the same decision as that under review.[42] However, because of the unique circumstances of the present case, the only decision that can be made in substitution of the internal review decision is that no relevant decision can be made about the workplace. This is because, on the facts of the present case, there is no power to make any decision under pt 5, div 3, sub-div 2 of the WHS Act.
  1. [76]
    Because of my conclusion about the above matters, it is unnecessary to determine the Applicant's alternative contention, namely, that the decision of the Inspector was inconsistent with the decision as communicated to the Applicant.

Conclusion

  1. [77]
    The question in this case was whether, where the workers at one or more workplaces carry out work for two or more PCBUs, the negotiation and determination of work groups, for the purposes of pt 5, div 3 of the WHS Act, is governed by                                       pt 5, div 3, sub‑div 2 of the WHS Act or by pt 5, div 3, sub-div 3 of the WHS Act.
  1. [78]
    For the reasons I have given, on the facts of the present case, the negotiation and determination of work groups, for the purposes of pt 5, div 3 of the WHS Act, is governed by pt 5, div 3, sub-div 3 of the WHS Act.
  1. [79]
    On 7 January 2022, the Regulator appointed the Inspector pursuant to s 54 of the WHS Act which is contained in pt 5, div 3, sub-div 2 of the WHS Act. The consequence is that the Inspector was not validly appointed and could not validly make any decisions pursuant to s 54(2) of the WHS Act. The further consequence is that the decision made by the Inspector, about the matters mentioned in s 52(3) of the WHS Act, was beyond the Inspector's power to make.
  1. [80]
    Pursuant to s 229E(1)(c) of the WHS Act, the decision should be set aside and a new decision made in substitution for it, namely, that no decision can be made.

Order

  1. [81]
    I make the following order:

Pursuant to s 229E(1)(c) of the Work Health and Safety Act 2011, the internal review decision of the Office of Industrial Relations of 13 April 2022, reference number 61641:

  1. (a)
    is set aside; and
  1. (b)
    a new decision is substituted for the internal review decision, namely that no decision can be made in relation to the workplace of the multi-level commercial construction project situated at 152 Wharf Street, Spring Hill.

Footnotes

[1] The agreed statement of facts and contentions of the Applicant and the Regulator filed on 29 November 2022 ('the agreed facts and contentions'), page 2 of 6, para. 10.

[2] The agreed facts and contentions, page 4 of 6, para. 15.

[3] The agreed statement of facts and contentions, page 5 of 6, paras. 16-19.

[4] The agreed facts and contentions, page 5 of 6, paras. 20-21. The Applicant further contends that at all times, the Inspector has been held out to be the decision maker for the purposes of the decision the subject of the Applicant's application for external review, but that the decision of the Inspector was inconsistent with the decision as communicated to the Applicant and, in those circumstances, the decision the subject of the external review is a nullity: The agreed facts and contentions, page 5 of 6, para. 22.

[5] The agreed facts and contentions, page 5 of 6, paras. 22-24.

[6] The agreed facts and contentions, page 6 of 6, paras. 25 and 27. The Regulator further contends the decision of the Inspector is consistent with the communication of the Inspector's decision: The agreed facts and contentions, page 6 of 6, para. 26.

[7] The agreed facts and contentions, page 1 of 6, para. 2.

[8] The agreed facts and contentions, page 1 of 6, para. 4.

[9] The agreed facts and contentions, pages 1 and 2 of 6, paras. 5-6.

[10] The agreed facts and contentions, page 2 of 6, para. 8.

[11] The agreed facts and contentions, page 2 of 6, para. 10.

[12] The agreed facts and contentions, page 3 of 6, para. 12.

[13] The agreed facts and contentions, page 1 of 6, para. 15.

[14] The authorities cited were Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61, [3] (Deputy President O'Connor), Dalliston v Taylor & Anor [2015] ICQ 17; (2015) 251 IR 3, [12] (Martin J, President), Sydney Trains v Safework NSW [2017] NSWIRComm 1009; (2017) 266 IR 276, [26]-[27] (Commissioner Newall) and Elgas Ltd v Safework NSW (No. 3) [2022] NSWIRComm 1068, [25]‑[27] (Commissioner Sloan).

[15] The written submissions of MPG Constructions Brisbane Pty Ltd filed on 10 February 2023 ('the Applicant's submissions'), paras. 2-9.

[16] The written submissions of The Regulator under the Work Health and Safety Act 2011 filed on 24 February 2023 ('the Regulator's submissions'), para. 1.

[17] The Applicant's submissions, para. 9.

[18] Work Health and Safety Act 2011, s 50.

[19] The Applicant's submissions, paras. 15-17.

[20] The Applicant's submissions, paras. 20-22.

[21] The Applicant's submissions, para. 23.

[22] The Applicant's submissions, paras. 24-25.

[23] The Applicant's submissions, paras. 25-27.

[24] The Applicant's submissions, para. 28.

[25] The Applicant's submissions, para. 30.

[26] The Applicant's submissions, para.31.

[27] The Applicant's submissions, paras. 34-40.

[28] The Regulator's submissions, para. 4.

[29] The Regulator's submissions, para. 5.

[30] The Regulator's submissions, paras. 7-8.

[31] The Regulator's submissions, paras. 9-10.

[32] The Regulator's submissions, paras. 42-49.

[33] [2017] HCA 34; (2017) 262 CLR 362.

[34] Citations omitted.

[35] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] generally agreeing).

[36] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[37] Ibid [70].

[38] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[39] Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, [16] (Gummow A-CJ and Kirby J).

[40] Acts Interpretation Act 1954 (Qld), sch 1, (definition of 'purpose' for an Act).

[41] The agreed facts and contentions, page 1 of 6, para. 2.

[42] Capuano v Q-Comp [2004] QSC 333; [2005] 1 Qd R 232 [20] (Philippides J) in respect of a provision analogous to s 229E(1)(c) of the Work Health and Safety Act 2011, being s 545(1)(c) of the Workers' Compensation and Rehabilitation Act 2003.

Close

Editorial Notes

  • Published Case Name:

    MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2023] QIRC 186

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    20 Jun 2023

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
Capuano v Q-Comp[2005] 1 Qd R 232; [2004] QSC 333
4 citations
Jump To
Cite 1 - [2004] QSC 333
Cite 2 - [2004] QSC 333
Cite 3 - [2005] 1 Qd R 232
Cite 4 - [2005] 1 Qd R 232
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
2 citations
Jump To
Cite 1 - [2012] HCA 56
Cite 2 - [2012] HCA 56
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Dalliston v Taylor [2015] ICQ 17
2 citations
Jump To
Cite 1 - [2015] ICQ 17
Cite 2 - [2015] ICQ 17
Dalliston v Taylor & Anor (2015) 251 IR 3
2 citations
Jump To
Cite 1 - (2015) 251 IR 3
Cite 2 - (2015) 251 IR 3
Elgas Ltd v Safework NSW (No. 3) [2022] NSWIRComm 1068
2 citations
Jump To
Cite 1 - [2022] NSWIRComm 1068
Cite 2 - [2022] NSWIRComm 1068
Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61
2 citations
Jump To
Cite 1 - [2018] QIRC 61
Cite 2 - [2018] QIRC 61
Northern Territory v Collins (2008) 235 CLR 619
2 citations
Jump To
Cite 1 - (2008) 235 CLR 619
Cite 2 - (2008) 235 CLR 619
Northern Territory v Collins [2008] HCA 49
2 citations
Jump To
Cite 1 - [2008] HCA 49
Cite 2 - [2008] HCA 49
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
3 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Cite 3 - (1998) 194 C.L.R 355
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Sydney Trains v Safework NSW [2017] NSWIRComm 1009
2 citations
Jump To
Cite 1 - [2017] NSWIRComm 1009
Cite 2 - [2017] NSWIRComm 1009
Sydney Trains v Safework NSW (2017) 266 IR 276
2 citations
Jump To
Cite 1 - (2017) 266 IR 276
Cite 2 - (2017) 266 IR 276
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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