Testing the validity of an improvement notice
In all jurisdictions in Australia, safety inspectors can only issue an improvement notice – requiring a person to take positive steps to address an identified breach – if the inspector has a reasonable belief that there is a present contravention of work health and safety (WHS) law or, that the person has contravened WHS law in circumstances that make it likely that the contravention will continue or be repeated.
The NSW Industrial Relations Commission (Commission) was required to consider and determine if a SafeWork inspector genuinely had reasonable belief in Lipman Pty Ltd v SafeWork NSW (2021) when a principal contractor appealed a refusal by SafeWork NSW to withdraw an improvement notice.
Lipman, a construction company, was the principal contractor responsible for the construction of an aged-care building in Liverpool, NSW.
As the building consisted of 11 floors, Lipman engaged Safemaster to install and certify a proprietary permanent fall arrest roof safety system for the construction site. This included anchor points for fall arrest purposes and a building façade access system to assist workers working on the exterior of the building.
Near the end of construction, the building required minor repairs and adjustments to the external façade. Lipman subcontracted Benz Height Access Solutions (Benz) to provide rope access services and specialist height access services for the repairs. Tragically, a Benz worker fell from the level-eight balcony and was fatally injured. The deceased worker was suspected of using Safemaster anchor points.
Following the fatal incident, SafeWork NSW inspected Lipman’s construction site and issued Lipman with:
- an improvement notice requiring improved compliance for the site’s fall arrest anchor points on level eight; and
- a prohibition notice preventing the use of all installed fall arrest/rope access anchor points across the site.
The improvement notice was issued on the basis that Lipman’s suspected contravention of the Work Health and Safety Act 2011 (NSW) (WHS Act) would continue or be repeated.
Lipman then unsuccessfully appealed the improvement notice to SafeWork NSW before applying to the NSW Industrial Commission for an external review of the improvement notice.
The Commission made it clear that the inspector must reasonably believe that:
- Lipman contravened s 19 of the WHS Act; and
- the contravention occurred in circumstances that made it likely that the contravention would continue or be repeated.
The Commission determined that assessing if an inspector has a reasonable belief warranting an improvement notice is an objective test.
Therefore, certain facts need to be in existence capable of inducing the state of mind of a reasonable person, or in other words, there needs to be reasonable grounds for the reasonable belief to exist.
In this case, the SafeWork inspector issued the improvement notice on the basis the contravention – being the failure to ensure the health and safety of workers on site – would continue or be repeated because the inspector:
- observed anchor points, including a failed anchor point, and ropes on level eight of the building;
- believed the use of abseiling by attaching it to any of the anchor points presented a serious risk to the health and safety of workers;
- observed the presence of workers at the site;
- was concerned that abseiling work at the site would continue; and
- knew that Mr Benz’s co-worker had been taken to Liverpool police station for questioning but he and/or other workers would be likely to return to the site and attempt to continue the façade work that Mr Benz had been conducting.
However, the Commission determined that no reasonable belief could exist because the inspector’s observations overlooked the operation of the prohibition notice.
Specifically, the prohibition notice had the effect of “prohibiting the very conduct that gave rise to the 'concern' that a contravention of the WHS Act would continue or be repeated” by Lipman. The prohibition notice prevented Lipman from undertaking any work involving rope access works or the fall arrest roof safety system, being the risks that formed the basis of the contravention.
In other words, the prohibition notice removed any objective basis for the inspector to conclude that the contravention would continue or be repeated. The prohibition notice would not be lifted until such time as the inspector was satisfied that no ongoing risk of injury was present.
The Commission also noted the context of Lipman cooperating with SafeWork NSW after the incident to create a safe worksite. Furthermore, the inspector’s grounds for reasonable belief did not suggest there was any evidence demonstrating Lipman had a poor safety record, prior contraventions, or prior record of non-compliance that would enable the inspector to form the required reasonable belief.
Considerations for employers
This decision is a reminder that businesses can challenge improvement or prohibition notices if the notices are deficient or have been issued without proper grounds.
As improvement and prohibition notices can expose your business to penalties for non-compliance, businesses need to carefully review any notices and ensure they are valid.
From the experts behind the Health & Safety Handbook, the Bulletin brings you the latest work health and safety news, legal updates, case law and practical advice straight to your inbox every week.