Amelio Sarchese v Comcare

[2013] FWC 4580

[2013] FWC 4580

FAIR WORK COMMISSION

DECISION

OH&S review authority

Amelio Sarchese
v
Comcare
(C2013/3418)

VICE PRESIDENT LAWLER SYDNEY, 10 JULY 2013

Work Health and Safety Act 2011 - Application for external review - Jurisdiction - Whether there was a “reviewable decision” within the meaning of s.229(1)(a).

[1] On 4 March 2013 Mr Sarchese (Applicant) filed an application pursuant to s.229 of the Work Health and Safety Act 2011 (Cth) (WHS Act). This is an application by Comcare for summary dismissal of that originating application.

Background

[2] The Applicant is an employee of the Australian Quarantine and Inspection Services who works at Australia Post’s Sydney Gateway Facility at Clyde. At all material times, Mr Sarchese was a “health and safety representative” within the meaning of s.4 of the WHS Act.

[3] On 1 February 2012 Mr Sarchese issued a provisional improvement notice to Australia Post pursuant to s.90 of the WHS Act (PIN). That PIN related generally to alleged poor air quality at the Sydney Gateway Facility.

[4] On 13 February 2012 Australia Post contacted AQIS to advise that the PIN had been removed on the basis that it believed it had complied with the requirements in the PIN.

[5] On 22 February 2012 Mr Sarchese complained to Comcare about the non-display of the PIN as required by s.97.

[6] Comcare inspectors Mr James Nolan and Ms Felicia Schinella, attended the workplace on 27 February 2012 and met with the Mr Sarchese and representatives of Australia Post. That same day, Inspector Nolan issued an “Inspector Report” that indicated that the PIN “may” be invalid as a result of not being on the correct template. However, it is tolerably clear that the inspectors did not treat that possible defect as a basis for taking no further action.

[7] There was a further meeting between Inspectors Nolan and Schinella, Mr Sarchese and representatives of Australia Post on 19 April 2012. On 20 April 2012 Ms Schinella issued an “Inspector Report”. It is clear from the terms of that report that Comcare’s assessment of the workplace health and safety issues raised by the PIN remained ongoing.

[8] On 27 May 2012 Mr Sarchese lodged a request for an Internal Review of an alleged decision by Inspector Nolan to declare the PIN invalid. In fact, Mr Nolan had made no such decision. He had merely expressed a provisional view that the PIN “may” be invalid because it was not in the correct form.

[9] On 31 May 2012 Mr Clay Boundy, the Assistant Director of (Internal) Reviews made a decision rejecting Mr Sarchese’s application for an internal review. Mr Bundy’s reasons were as follows:

“Section 223 of the WHS Act allows “eligible persons” to request an internal review of certain decision made under specific sections of the WHS Act. The relevant decision in this case, and as cited by you in your request, is a decision under section 102 of the Act which provides that an Inspector may cancel, vary or confirm a PIN issued by a HSR.

The Comcare Inspectors involved in this matter are attempting to facilitate a satisfactory outcome between all parties concerned through obtaining evidence and using consultation within, and across, the workplaces concerned. This process of obtaining further evidence in regard to the risk identified within the PIN has continued since Comcare indicated the PIN may have been invalid. As the matter is still ongoing, Comcare is of the view that no decision has been made by a Comcare Inspector in regard to the PIN issued on 1 February 2012.

Conclusion

In the absence of a decision being made under section 102 of the WHS Act, I am unable to undertake an Internal Review pursuant to section 223 of the WHS Act.”

[10] It appears that there were further interactions between the Comcare inspectors, Australia Post and Mr Sarchese over the remainder of 2012.

[11] On 19 February 2013 Mr Sarchese made a second application for internal review.

[12] On 21 February 2013 Mr Bundy rejected that application for internal review stating:

“I refer to your request for an Internal Review lodged on 19 February 2013. In that application you specifically requested a review of Inspector Nolan’s decision that a Provisional Improvement Notice (PIN), issued by yourself on 1 February 2012, had been complied with by the Australian Postal Corporation (APC).

I note that the issues you have raised within the Application for Review have been the subject of numerous discussions and enquiries over the past twelve months. I also note that you have previously requested an Internal Review in relation to this particular PIN on 27 May 2012.

In that earlier review process you were informed on 31 May 2012 that no “reviewable decision” had been issued at that stage as enquiries were still being undertaken by the Inspectors. You were then advised to pursue any issues you had with the process with the Inspectors involved and the Regional Director for NSW/ACT.

You have also been informed more generally that your avenues for further discussion in relation to the matter were best undertaken with the employers and workers involved via normal WHS consultation mechanisms in place at your workplace.

I note that on 7 February 2013, Inspector Nolan furnished you with an “Inspector’s Report” in which he indicated that he believed the APC were complying with the WHS Act as far as is reasonably practicable in relation to the “Air-Dirt” issue raised in your PIN.

Inspector Nolan also noted that he had not been requested to review the PIN pursuant to section 100 of the WHS Act but instead he had been making enquiries as a result of an issue that had been brought to his attention at your workplace. As there had been no request made under section 100, Inspector Nolan further noted that there was no requirement to·make a decision pursuant to section 102 of the WHS Act.

Section 223 of the WHS Act provides for the decisions which can be the subject of an Internal Review by Comcare. Whilst decisions to cancel, confirm or vary a PIN under section 102 of the WHS Act are listed as “reviewable decisions” it is my opinion that no such decision has been made in this case. Section 102 has not been enacted as there has been no disputed PIN or request for review of a PIN made under section 100. Instead; the Inspector made some enquiries into an issue as per his functions and powers under section 160 and was satisfied that there was no breach of the WHS Act occurring.

It is for this reason that I believe there is no “reviewab1e decision” that can be the subject of an Internal Review pursuant to Part 12 of the WHS Act

Despite the fact that there has not been a reviewable decision issued in this matter, it is my view that the issues you have raised in relation to the PIN issued on 1 February 2012 have been dealt with by Comcare and the APC over the past twelve months. Your recourse at this stage would be to monitor the situation in line with your role as a Health and Safety Representative and participate in regular discussions with workers and employer representatives to identify and remedy any health and safety issues that need attention.”

[13] Mr Sarchese filed the originating application in this matter on 4 March 2013.

[14] A health and safety representative, like Mr Sarchese, is empowered to issue a provisional improvement notice:

90 Provisional improvement notices

(1) This section applies if a health and safety representative reasonably believes that a person:

(a) is contravening a provision of this Act; or

(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated.

(2) The health and safety representative may issue a provisional improvement notice requiring the person to:

(a) remedy the contravention; or

(b) prevent a likely contravention from occurring; or

(c) remedy the things or operations causing the contravention or likely contravention.

(3) However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.

...

(5) A health and safety representative cannot issue a provisional improvement notice in relation to a matter if an inspector has already issued (or decided not to issue) an improvement notice or prohibition notice in relation to the same matter.

[15] A provisional improvement notice must be in writing: s.91 and, pursuant to s.92, must state:

(a) that the health and safety representative believes the person:

(i) is contravening a provision of this Act; or

(ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and

(b) the provision the representative believes is being, or has been, contravened; and

(c) briefly, how the provision is being, or has been contravened; and

(d) the day, at least 8 days after the notice is issued, by which the person is required to remedy the contravention or likely contravention.

[16] Pursuant to s.93, a provisional improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention or the matters or activities causing the contravention or likely contravention to which the notice relates.

[17] Section 97 imposes an obligation on the recipient of a provisional improvement notice to display the notice:

97 Display of provisional improvement notice

(1) A person to whom a provisional improvement notice is issued must as soon as practicable display a copy of the notice in a prominent place at or near the workplace, or part of the workplace, at which work is being carried out that is affected by the notice.

...

[18] Section 99 makes it an offence for a person not to comply with a provisional improvement notice if such a notice has been issued to the person and an inspector has not been required under section 101 to attend at the workplace: s.99 WHS Act:

99 Offence to contravene a provisional improvement notice

(1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace.

(2) The person must comply with the provisional improvement notice within the time specified in the notice.

Penalty:

(a) In the case of an individual—$50 000.

(b) In the case of a body corporate—$250 000.

[19] Section 100 permits a person issued with a provisional improvement notice to request a review of that notice:

100 Request for review of provisional improvement notice

(1) Within 7 days after a provisional improvement notice is issued to a person:

(a) the person to whom it was issued; or (b) if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work;

may ask the regulator to appoint an inspector to review the notice.

(2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review.

[20] When a request is made under s.100, the regulator (Comcare - see s.4) must appoint an inspector to review the provisional improvement notice:

101 Regulator to appoint inspector to review notice

(1) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100.

(2) The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice.

(3) An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired.

[21] The role of the inspector is addressed in s.102:

102 Decision of inspector on review of provisional improvement notice

(1) After reviewing the provisional improvement notice, the inspector must:

(a) confirm the provisional improvement notice; or

(b) confirm the provisional improvement notice with changes; or

(c) cancel the provisional improvement notice.

(2) The inspector must give a copy of his or her decision to:

(a) the applicant for the review of the provisional improvement notice; and

(b) the health and safety representative who issued the notice.

(3) A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act.

[22] It is apparent from these provisions that where a request is made under s.100 by the recipient of a provisional improvement notice:

(a) Comcare “must” appoint an inspector to review the provisional improvement notice to which the request relates, and

(ii) The inspector “must” do one of the things specified in s.102(1), That is, the inspect “must” either confirm the provisional improvement notice, confirm it with changes or cancel it and provide a copy of his or her decision to the parties.

[23] Section 224 provides:

224 Application for internal review

(1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within:

(a) the prescribed time after the day on which the decision first came to the eligible person’s notice; or

(b) such longer period as the regulator allows.

(2) The application must be made in the manner and form required by the regulator.

(3) For the purposes of this section, the prescribed time is:

(a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser; and

(b) in any other case, 14 days.

[24] Section 229 provides:

229 Application for external review

(1) An eligible person may apply to the Fair Work Commission for review (an external review) of:

(a) a reviewable decision made by the regulator; or

(b) a decision made, or taken to have been made, on an internal review.

(2) The application must be made:

(a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant’s notice; or

(b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant’s notice; or

(c) if the regulator is required by the external review body to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.

(3) The Fair Work Commission may do any of the following in relation to the decision to which the application relates:

(a) confirm the decision;

(b) vary the decision;

(c) set aside the decision and make a decision in substitution for the decision set aside.

[25] Section 223(1) sets out a table of “reviewable decisions”, being decisions that are reviewable in accordance with Part 12 of the WHS Act. Section 223(2) provides:

(2) Unless the contrary intention appears, a reference in this Part to a decision includes a reference to:

(a) making, suspending, revoking or refusing to make an order, determination or decision; or

(b) giving, suspending, revoking or refusing to give a direction, approval, consent or permission; or

(c) issuing, suspending, revoking or refusing to issue an authorisation; or

(d) imposing a condition; or

(e) making a declaration, demand or requirement; or

(f) retaining, or refusing to deliver up, a thing; or

(g) doing or refusing to do any other act or thing.

[26] Pursuant to s.223(1), decisions made under s.102 are reviewable decisions. There are no other decisions relevant to the present case that are listed as reviewable in s.223.

[27] It is clear from s.223(1) that Mr Sarchese, as the health and safety representative who issued the PIN, is an “eligible person”.

[28] On the evidence before me, the critical fact is that Australia Post did not request a review of the PIN under s.100. Rather, it took the view that it had complied with the notice and simply took it down. If Australia Post was wrong in that view then it ran the risk of committing an offence under s.99.

[29] Moreover, because there was no request for a review of the PIN under s.100, the obligation on Comcare to appoint an inspector to review the PIN under s.101 did not arise and it did not do so. Rather, as indicated in Mr Boundy’s correspondence, the Comcare inspectors in this case acted pursuant to their general powers in paragraphs (a) and (f) - and possibly also (b) and (e) - of s.160 of the WHS Act which provides:

160 Functions and powers of inspectors

An inspector has the following functions and powers under this Act:

(a) to provide information and advice about compliance with this Act;

(b) to assist in the resolution of:

(i) work health and safety issues at workplaces; and

(ii) issues related to access to a workplace by an assistant to a health and safety representative; and

(iii) issues related to the exercise or purported exercise of a right of entry under Part 7;

(c) to review disputed provisional improvement notices;

(d) to require compliance with this Act through the issuing of notices;

(e) to investigate contraventions of this Act and assist in the prosecution of offences;

(f) to monitor compliance with this Act.

[30] It is tolerably clear that the investigators reached the conclusion that Australia Post had not committed any offence that ought be prosecuted.

[31] More importantly, because Comcare did not appoint an inspector to review the PIN, the inspectors did none of the things specified in s.102(1). That is, they did not confirm the PIN, confirm the PIN with changes nor cancel the PIN. There was no decision made under s.102 and thus no “reviewable decision” that could properly be the subject of an application for external review under s.229(1)(a).

[32] Mr Sarchese made two applications for internal review. Mr Boundy determined each of those applications and refused them. Mr Boundy’s letters of 31 May 2012 and 21 February 2013 record his reasons for each of those determinations. Each can properly be characterised as “a decision made, or taken to have been made, on an internal review” within the meaning of s.229(1)(b).

[33] However, Mr Boundy’s internal review decisions were founded on the absence of any request for a review under s.100 from Australia Post, the absence of review of the PIN under s.101 or a decision under s.102 and the consequent absence of any “reviewable decision” for the purposes of s.224. For the reasons already given, Mr Boundy was clearly correct in that regard. It follows that Mr Sarchese has no prospects of success in so far as his application seeks an external review by the Fair Work Commission (the Commission) of Mr Boundy’s internal review decisions. The only proper exercise of discretion is to summarily dismiss the originating application in so far as it is based on Mr Boundy’s internal review decisions.

[34] The originating application in this matter is dismissed.

[35] I recognise that the conclusion I have reached will be extremely frustrating to Mr Sarchese who clearly holds a conscientious belief the PIN was properly issued and that Australia Post has not adequately addressed the workplace health and safety issues to which the PIN was directed. He may or may not be correct in that belief. However, the Commission is a creature of statute and has only such jurisdiction as is conferred on it by statute. Relevantly for present purposes:

• the Commission has no jurisdiction to review the position adopted by Australia Post;

• the prerequisites for a review under s.229(1)(a) do not exist because there is no “reviewable decision”; and

• a review of Mr Boudy’s internal review decisions under s.229(1)(b) is bound to fail for technical jurisdictional reasons that are unrelated to the merits of the Mr Sarchese’s workplace health and safety concerns.

[36] The difficulty is that the WHS Act contains no mechanism for an external review where the addressee of a provisional improvement notice does not seek a review of that notice, even if the issuer of the notice is justifiably dissatisfied with the addressee’s response to the notice.

VICE PRESIDENT

Appearances:

Mr A. Sarchese appeared in person.

Mr N. Neil appeared for the Respondent.

Final written submissions:

Tuesday, 2 April 2013

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