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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROVERA SCAFFOLDING (ACT) PTY LTD v DIRECTOR-GENERAL OF THE CHIEF MINISTER, TREASURY & ECONOMIC DEVELOPMENT DIRECTORATE (Administrative Review) [2016] ACAT 127

AT 110/2014

Catchwords: ADMINISTRATIVE REVIEW – scaffolding – whether construction of scaffolding must comply with the manufacturers manual – whether construction of scaffolding must comply with the relevant Australian Standards – whether the scaffolding represented a risk to health and safety – what review process is available under section 191 of the Work Health and Safety Act 2011

Legislation cited: Legislation Act 2001 s 16

Work Health and Safety Act 2011 ss 3, 18, 19, 26, 156, 160, 191, 223, 229

Subordinate

Legislation cited: Work Health and Safety Regulation 2011 rr 201, 202, 225

List of

Texts/Papers cited: Australian Standards AS 1576, AS 4576

Tribunal: Senior Member A Anforth (Presiding)

Senior Member R Pegrum

Date of Orders: 23 November 2016

Date of Reasons for Decision: 23 November 2016

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AUSTRALIAN CAPITAL TERRITORY

CIVIL & ADMINISTRATIVE TRIBUNAL AT 110/2014

BETWEEN:

ROVERA SCAFFOLDING (ACT) PTY LTD

Applicant

AND:

DIRECTOR-GENERAL OF THE CHIEF MINISTER, TREASURY & ECONOMIC DEVELOPMENT DIRECTORATE

Respondent

TRIBUNAL: Senior Member A Anforth (Presiding)

Senior Member R Pegrum

DATE: 23 November 2016

ORDER

The Tribunal orders that:

1. The decision of the respondent is set aside and a decision is substituted that a notice under section 191(2) of the WHS Act not be issued.

………………………………..

Senior Member A Anforth

delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Preamble

1.  The applicant sought internal review of a decision by Mr Mason (Worksafe Inspector) employed by the respondent dated 4 November 2014 to issue an improvement notice under section 191 of the Work Health and Safety Act 2011 (theWHSAct). The notice related to scaffolding at a building site at Gungahlin (the site) at which Lend Lease was constructing a new commercial complex. Lend Lease contracted the applicant Rovera Scaffolding (ACT) Pty Ltd (Rovera) to erect the scaffolding for the building work.

2.  Mr Mason’s decision was affirmed by Mr McCabe, then a senior director at WorkSafe ACT, on internal review on 5 December 2014. Section 229 of the WHS Act provides that an eligible person may apply to the ACAT for a review. The applicant is an eligible person according to Item 9 of the WHS Act. The applicant exercised that right and applied to the tribunal for review.

3.  After careful consideration, the two members who formed the Tribunal for the application reached different conclusions about the orders that should be made. Section 52 of theACT Civil and Administrative Tribunal Act 2008 provides that where a Tribunal is constituted by more than one member and they cannot reach a majority decision on the question, the decision of the presiding member is the decision of the Tribunal. Senior Member Anforth was the presiding member and his decision therefore prevails. The reasons of both members are set out below.

REASONS FOR DECISION OF SENIOR MEMBER ANFORTH

Chronology of events

4.  On 4 November 2014 Mr Mason, a WorkSafe inspector, made certain observations of the applicant’s scaffolding on the site. The construction on the site was well under way and was some four storeys high. Mr Mason observed what he considered to be defects in the scaffolding. The defects included the failure of the diagonal bracing to extend to the top lift of the scaffolding and a gap of about 0.5 metres between the upper points of attachment of some diagonal support struts and the lower attachment of the next diagonal support struts.

5.  Some form of verbal altercation occurred on site between Mr Mason and MrPerrott, the Lend Lease site construction manager, concerning the adequacy of the scaffolding. Mr Mason returned to his office and later that day issued the improvement notice requiring rectification of the scaffolding and a statement of compliance following a further inspection by a competent person.

6.  The work place visit note number 1873-7778 prepared by Mr Mason on the same day and directed to Rovera made the following observations and directions:

1. Observed face bracing (longitudinal bracing) on scaffold not continuous to top working level

Actions

2. Improvement Notice 1873-7776 to be issued to Rovera Scaffolding (person with management of scaffolding) for scaffold on site not erected in accordance with manufacturer’s instructions (reg 225(4))

3. Rovera to provide WorkSafe with a copy of handover certificate for the scaffolding on site once necessary repairs, alterations and additions are carried out and the scaffold and its supporting structures have been inspected by a competent person.[1]

7.  The improvement notice 1873-7776 prepared by Mr Mason on the same day and directed to Rovera commences in general terms and then nominates the provision said to be contravened as regulation 225(4) of the Work Health and Safety Regulation 2011 (the Regulation). The notice contained the following explanatory material:

An inspection undertaken of the scaffolding erected at Block 43 Section 226 Gungahlin on 4/11/2014 indicated that the scaffold or its supporting structure creates a risk to health and safety of persons on the site due to not being erected in accordance with manufacturer’s instructions.[2]

8.  The notice directed Rovera to:

Have a competent person inspect the scaffolding erected at the construction project and carry out any necessary repairs, alterations and additions and provide the principle contractor of the site and WorkSafe with written confirmation from a competent person, who has inspected the scaffold, that the construction of the scaffold has been completed in accordance with the manufacturer’s erection instructions and the appropriate Australian Standards.

9.  The notice also stated that the contravention was to be remedied by close of business 6November 2014.

10.  Lend Lease and Rovera attended to the rectification of the scaffolding within two days to the satisfaction of WorkSafe. An additional 34 structural members were added to the scaffold and there was no issue concerning the rectification work. There was no monetary or other penalty imposed on Rovera. Mr Mark Savage, manager of Rovera, told the Tribunal that the fact the rectification work done did not amount to any admission or agreement that the scaffolding work was defective in the first instance. The work was undertaken because “our reputation is very important to us…if we didn’t remedy that, the bracing and so forth, there was a real chance that the site could be stopped. That would in turn damage our reputation relationship with the principal contractor.”[3]

11.  The improvement notice was the subject of an internal review which affirmed the issue of the notice. The delegate, Mr McCabe, provided reasons dated 5December 2015. Leaving aside formal matters, Mr McCabe directed his attention to whether there had been a contravention as provided for by section 191(1)(a) or (b) of the WHS Act and the alleged breach of regulation 225(4). He noted (in summary):

(a)  regulation 225(4) is premised on the existence of ‘a risk to health and safety’ arising from the scaffolding;

(b)  the engineering report of Mr Stodulka dated 19 March 2014 to the effect that the scaffolding was structurally sufficient and complied with the relevant Australian Standards;

(c)  the contention that there was no requirement at law to strictly follow the manufacturer’s instructions on the erection of scaffolding;

(d)  the contention that Mr Mason directed his attention to only one method of compliance with AS 4576 and AS 1576, namely by observing the manufacturer’s instructions, and that he ignored the alternative method of design by a competent person under the Australian Standards.[4]

12.  Mr McCabe noted that regulation 202(2) does not require strict compliance with the manufacturer’s guidelines but requires the applicant to ‘have regard to’ them. He noted that Australian Standard 4576 at 10.3.4 permits scaffold design by a competent person “where it is not practicable to follow the supplier’s information for the design of a scaffold.” In the present case there had been no assertion of any relevant impracticality.

13.  Mr McCabe noted:

(a)  the failure of the diagonal bracing to extend to the top lift. He noted that AS 4576 at part 8.6 requires extension to the top lift “unless erection and dismantling procedures are designed by a competent person and provided to the scaffolders erecting the scaffolding to ensure the scaffolding is erected within the design limits of the system.” Mr Mason said that the applicant was unable to point to any such alternative procedures;

(b)  the existence of Unimesh Reinforced Polymer around some of scaffolding which would increase the wind load and hence put the scaffolding under additional strain; and

(c)  the date of Mr Stodulka’s report, being some seven months before the site visit of Mr Mason. At that time it was unlikely that much of the scaffolding had actually been erected.

14.  Mr McCabe concluded that no competent person had signed off on the scaffolding as built or had verified the design. He was of the view that the scaffolding as built ‘creates a risk to health and safety’.

15.  Rovera then sought review by the ACT Civil and Administrative Tribunal. The Tribunal was told that the motivation for the appeal lay in the potential for the improvement notice to prejudice future contracts for which Rovera might tender. Mr Walker SC told the Tribunal “in tendering for jobs you are regularly asked whether you have had any work health and safety improvement notices issued to you”. In any event Rovera had a right of appeal and its motivation for doing so is irrelevant.[5]

16.  There followed a series of direction hearings in which a timetable was made and subsequently varied for the filing of statements of facts and contentions, statements of witnesses and other material relied upon.

17.  The evidence of the witnesses before the Tribunal was often characterised by evasiveness. There appeared to be a degree of tension between the respondent’s officers and the witnesses of Rovera and Lend Lease. On various occasions the Tribunal found it necessary to put a proposition to a witness which appeared to be the underlying substance of their evidence. On those occasions the Tribunal informed the witness that, unless an unequivocal rebuttal or explanation was given, the Tribunal would take their evidence to be the proposition put by the Tribunal. The evidence of Mr Bodsworth and Mr Stodulka was particularly evasive evoking comment from the Tribunal at the time.[6]

18.  The core of the appeal lay in a proper construction of several provisions of the the WHS Act including sections 191(1) and (2); regulations 202 and 225(4) in the Regulation and the role of the Australian Standards AS 4576 and AS 4176 for the purpose of section 191 and regulation 225(4).

19.  Section 191 of the WHS Act required that Mr Mason identify a contravention of the WHS Act or of the Regulation. Mr Mason asserted a breach of regulation 225(4), which he contended came into effect “if an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health and safety”. It was open to Mr Mason to have based the improvement notice on any contravention of the Act or Regulation. Mr Mason’s reliance upon regulation 225(4) was his choice and required for its validity a reasonable belief that there was a risk to health and safety.

20.  Regulation 225(4) applies where an ‘inspection’ ‘indicates’ that there is a risk to health and safety. At that point the site manager ‘must ensure’ that any necessary repairs, alterations or additions are carried out. The ‘inspection’ is a reference to the inspection by the ‘competent person’ referred to in regulation 225(3). A ‘competent person’ is defined in the Dictionary to the Regulation as “a person who has acquired through training, qualification or experience the knowledge and skills to carry out the task.” Mr Mason gave evidence of his training and qualifications that qualified him as a ‘competent person’. The respondent put its case on the premise that Mr Mason was a competent person capable of giving an ‘indication’ under this regulation, albeit that he in fact chose to issue a notice under section 191.

21.  Regulation 225(4) permits a competent person, in this case Mr Mason, to ‘indicate’ to Rovera that repairs or rectifications are required and that there be subsequent inspections of the rectified work. It is an offence for Rovera to fail to comply with that ‘indication’ under this regulation. The indication of a scaffolding defect that creates a risk to public health and safety is a jurisdictional fact that must be shown to exist before the operation of the remainder of regulation 225(4) can operate. The existence of that jurisdictional fact is not itself a breach of regulation 225(4) or of the regulations. It is the trigger by which the power to require or order rectifications in regulation 225(4) come into operation. A breach of regulation 225(4) only arises where there is non compliance with an indication or order to carry out the rectification or repairs.

22.  A degree of semantics arose concerning the construction of regulation 225(4). It was pointed out that the regulation does not explicitly provide for a ‘notice’ or an ‘order’ to be given by the competent person to Rovera. It is true that the regulations uses the term ‘indication’. This is an ordinary English word and connotes the act of bringing something to someone attention. Rovera is not expected to determine any concerns by a competent person following their inspection by some psychic processes. It is trite that no indication is given until it is conveyed to Rovera and Rovera cannot commit an offence under the WHS Act by failing to ensure that necessary repairs, alterations etc are carried out until it is told what has to be done. It may be that the ‘indication’ could be given orally or in writing, but it still has to be given and when it is given it puts Rovera on notice of what has to be done. A written notice from a competent person, in this case Mr Mason, can also be an ‘indication’ within the meaning of regulation 225(4).

23.  The other semantic issue that arose over the construction of regulation 225(4) concerned the use of the term ‘order’. Regulation 225(4) provides that upon receipt of the indication Rovera ‘must ensure’ that it carries out the necessary repairs, alterations etc, in default of which a criminal offence is committed. For a person to be told that they ‘must’ do certain things in default of which they will be guilty of a crime, is close enough to the ordinary English meaning of the noun ‘an order’.