What you need to know
- An objective test applies to determine whether an inspector (safety regulator) had a proper basis to form a "reasonable belief" when issuing safety enforcement notices under WHS legislation.
- Inspectors are obliged to test the validity of the assumptions underpinning their beliefs of the risk posed to health and safety.
- Testing the validity of such assumptions involves inspectors making reasonable inquiries, though they are not required to conduct a full investigation or satisfy themselves to the level of proof of an actual breach of the WHS Act.
- The reasoning in this decision may also apply to other enforcement measures, such as improvement notices issued by safety regulators and provisional improvement notices issued by health and safety representatives where reasonable belief plays a role. Right of entry by union officials based on "reasonable suspicion" of a breach of WHS laws also applies an objective test.
What you need to do
- Review any reasons provided by safety regulators for the issuing of enforcement notices and consider whether these support a reasonable belief of a serious risk involving the health or safety of a person.
- If appropriate, record the circumstances surrounding a potential safety risk that would go toward the objective assessment of an inspector's "reasonable belief".
- An application may be made to review an enforcement notice. The issuing of a notice may still be a reviewable decision, even if the notice has been complied with.
Why was a prohibition notice issued?
An inspector of a safety regulator issued a prohibition notice to an employer based on incorrect assumptions about a risk to safety on a construction site. The inspector mistakenly assumed that bulk excavation was continuing on the site where cracks had developed in a shoring wall. His assumptions were based on:
- the presence of workers on the site
- an engineer's opinion that the wall was not at risk of collapse meaning that works were likely to be continued before the risk was remedied; and
- the presence of an excavator on site.
On review of the decision to issue the notice under the NSW WHS Act, the Chief Commissioner 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.
The design and construction company had applied for a review of the decision to the Commission, after the safety regulator (SafeWork NSW) refused to conduct an internal review of the issuing of the notice. The company asserted that having an erroneous prohibition notice on its record was damaging to its reputation.
Ultimately, in revoking the prohibition notice, the Commission found that "a clearly held but mistaken belief was [objectively] not reasonable". Further, 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".
The Commission observed that an inspector is "required to balance the objective information available … and is obliged to make reasonable inquiries", and in respect of such inquiries "is not bound by the responses but must take them into account" in forming a view whether to issue a notice.
The objective test for "reasonable belief"
The Commission endorsed the objective test for determining "reasonable belief" established by the High Court in George v Rockett [1990] HCA 46.The Commissioner held that the fact that the prohibition notice was subject to a merits review was further indication that the test must be an objective one.
Objective test for other WHS enforcement measures
The objective test for reasonable belief is also relevant for improvement notices issued by a safety regulator, and provisional improvement notices that may be issued by Health and Safety Representatives (HSRs), each requiring the issuing person to "reasonably believe" a contravention has occurred or is likely to continue or be repeated. A "reasonable belief" also applies to stop work orders a regulator may issue under NSW mining safety laws (Work Health and Safety (Mines and Petroleum Sites) Act 2013).
Right of entry for WHS
Similarly, an objective test also applies for right of entry by union officials under WHS legislation and the Fair Work Act 2009 (Cth) to investigate suspected contraventions of safety laws.
In the recent decision of CFMEU v Acciona Infrastructure Australia Pty Ltd [2017] NSWIRComm 1000, the Industrial Relations Commission of NSW held that an objective test applied to determine whether a permit holder "reasonably suspects" a contravention of WHS laws. The Commission observed that while a reasonable suspicion involves something less than a reasonable belief, it requires more than a possibility.
In that case, the Commission determined that reasonable suspicion must be based on facts supported by probative material, and requires more than mere hearsay evidence and observation of workers at work. The Commission stated that the attempted use of rights of entry on the basis of non-probative evidence, such as was relied upon by the union, had the potential to undermine the very important purpose for which rights of entry exist.
Authors: Trent Sebbens, Partner; and Roanize Kruger, Clerk.
