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2 Dec 14
Supreme Court clarifies inspectors' powers under the NSW WHS Act

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Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade and Investment) [2014] NSWSC 1580

THINGS YOU NEED TO KNOW

  • Contractors, operators, suppliers and workers need to be aware of the broad-ranging powers of inspectors under the model Work Health and Safety laws (Model Legislation).

WHAT YOU NEED TO DO NEXT

  • Check that your compliance regime, particuarly for protective structures, is current and documents are accessible.
  • Be aware of your obligations when dealing with inspectors in the event of an incident investigation, including during interviews.

Her Honour Justice Schmidt of the Supreme Court has clarified inspectors' powers under sections 155 and 171 of the Work Health and Safety Act 2011 (NSW) (WHS Act) in the recent decision of Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade and Investment) [2014] NSWSC 1580.  Her Honour was critical of the restrictive interpretation of the WHS Act sought by Hunter Quarries Pty Ltd (Hunter Quarries) and dismissed their application.

The interpretation placed upon these powers will apply across all states who have adopted the Model Legislation.

This focus alert discusses this recent Supreme Court decision and also the Department of Trade and Investment (DTI) Information Release about the fatal incident at Hunter Quarries on 9 September 2014, including recommendations for Persons Conducting a Business or Undertaking (PCBUs).

Background
On 9 September 2014 Mr Ryan Messenger, an employee of Hunter Quarries, was fatally injured when the excavator he was operating tipped (Incident).

This Incident led to the initiation of a DTI investigation, which included formal requests by DTI Inspectors for information and documents using their powers under the WHS Act.

The safety issues arising from the death of Mr Messenger are discussed in more detail within the DTI Information Release.

Resting position of excavator at top of quarry face - Photograph by DTI Investigation Unit – DTI Information Release

NSW Department of Trade and Investment Information Release
The DTI Information Release reminds relevant PCBUs (including PCBUs who operate earth moving machinery, mine operators, designers of plant and suppliers) of their obligations under the WHS Act.   These obligations include, but are not limited to, the:

  • provision of plant that is fit for purpose
  • provision of adequate supervision, instruction and training
  • management of risk to any person on their worksite using the ‘Hierarchy of Controls’
  • design of plant to ensure risks to health and safety are managed, and
  • design of the mine to ensure risk to health and safety are managed.

The DTI also noted the obligations of PCBUs under clauses 214 and 215 of the Work Health and Safety Regulation 2011 (NSW) (WHS Regulation) which require management of the risks to health and safety of powered mobile plant overturning and the use of operator ‘protective structures’.

A protective structure is defined under section 217(3) of the WHS Regulation to mean:

‘a structure designed to protect the operator from injury if the machinery rolls over and from falling objects.’

In addition, the DTI has stated that consideration should be given to tip over and flying object protection for operators.

Read the full DTI Information release here.

Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade and Investment) [2014] NSWSC 1580
On 9 September 2014, in accordance with section 38 WHS Act requirements, Hunter Quarries notified the DTI of the Incident and DTI inspectors attended the workplace to begin their investigation.

A dispute then arose when the DTI inspectors tried to exercise their powers under section 171 of the WHS Act, including their powers to require a person who has custody of or access to documents, to produce those documents and to answer questions.

Hunter Quarries advised the inspectors that the appropriate course of action for the investigation was to issue written notices under section 155 of the WHS Act, titled ‘Powers of regulator to obtain information’.  The inspectors disagreed and advised Hunter Quarries that they intended to use section 171, in order to determine whether there had been a contravention of the WHS Act.

Hunter Quarries subsequently made an application to the Supreme Court of New South Wales to determine the issue.

Decision
On 25 September 2014, Her Honour Justice Schmidt dismissed the application, providing her decision on 12 November 2014.

It was determined that section 171 of the WHS Act was to be used after a DTI inspector exercised their statutory power to enter a worksite.  It allows for the pursuit of an investigation into a ‘notifiable incident’ and allows for the inspector to require a person:

  • to tell the inspector who has custody of, or access to, a document
  • who has custody of, or access to, a document to produce that document to that inspector while the inspector is at that workplace or within a specified period, or
  • at the workplace to answer any questions put by the inspector.

Her Honour reiterated that section 171 was a broad power and was not limited to circumstances where an inspector suspected a contravention of the WHS Act.  Rather, it is also intended to be used by inspectors to ensure compliance, investigate contraventions and to assist in prosecuting offences.

Her Honour noted importantly that section 155 did not limit these powers.  Rather, it gave inspectors powers arising from the ‘reasonable grounds’ for a belief that a person was capable of giving information, providing documents, or giving evidence for a possible contravention.  The obvious source of these ‘reasonable grounds’ for belief would stem from information gathered using section 171 powers.

Her Honour also stated that if Hunter Quarries’ argument was to be accepted, then it would create an unworkable situation. It would mean an inspector would only be permitted to request immediate access to documents and to ask questions of workers at the workplace about compliance matters and not for documents and information that would shed light on possible contraventions of the WHS Act which may be prosecuted.

Interaction between sections 171 and 155
Despite granting different powers and obligations on regulators and Inspectors, the interaction of sections 155 and 171 of the WHS Act is complementary in nature.

For example, as discussed above, section 155 requires a regulator to form an opinion on reasonable grounds. It is likely that an inspector exercising section 171 powers would be the conduit for forming such an opinion.

Importantly, the Court clarified how section 171 is concerned with powers which are to be exercised by inspectors at the workplace at a time when an investigation is being conducted, in potentially urgent situations.  Section 155 however is not concerned with this.  It is to be used after information has already been gathered from which an opinion can be formed.

Ultimately, it was found that to limit the interaction of sections 171 and 155 of the WHS Act would not be true to the purpose of the WHS Act, which was to ensure workers and other persons were protected from harm to their health and safety.

The Table below outlines the different nature and uses of sections 171 and 155 of the WHS Act:

Section 171 powers under the WHS Act Section 155 powers under the WHS Act

Section 171 powers are limited by the fact that inspectors must exercise the powers on entry at the workplace.

Section 155 is not concerned with inspectors’ powers that can be exercised on entry to a workplace.

Section 171 powers do not depend on any prior opinion being formed by inspectors.

Section 155 presumes that the regulator already has information on which an opinion could be formed.

Section 171 does not depend on written notice being given.

Section 155 requires notice to be given in writing.

owers under section 171 are available to be exercised by inspectors on notification of a notifiable incident and do not require written delegation.

Section 155 powers rely on prior written delegation under section 154, from the regulator to the inspector (which had not occurred in this case).

 

Conclusion
This decision reinforces that PCBUs and workers need to be aware of the broad-ranging powers of inspections under section 171 which can be exercised to investigate compliance with, and contravention of, the WHS Act.

To read the full decision of Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade and Investment) [2014] NSWSC 1580, click here.
 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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