Re: Application by DP World Brisbane Pty Limited pursuant to s 138 of the Work Health and Safety Act 2011 for a WHS entry permit held by Garry John Rogers to be revoked

[2014] QIRC 186

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Application by DP World Brisbane Pty Limited
pursuant to s 138 of the Work Health and Safety Act 2011 for a WHS entry permit held by Garry John
Rogers to be revoked [2014] QIRC 186
PARTIES:	DP World Brisbane Pty Limited
(Applicant)
v
Garry John Rogers
(Respondent)
and
The Electrical Trades Union of Employees Queensland
(Second Respondent)
CASE NO:	WHS/2013/24
PROCEEDING:	Application to revoke WHS entry permit
DELIVERED ON:	18 November 2014
HEARING DATES:	16 May 2013
17 June 2013 18 June 2013 19 June 2013 21 June 2013 3 July 2014
18 July 2014 24 July 2014 3 October 2014 29 August 2014 (Applicant Submissions) 26 September 2014 (Respondent Submissions) 3 October (Submissions in Reply) 17 September 2014 (Applicant Submissions) 24 October 2014 (Respondent Submissions)
MEMBER:	Deputy President Swan
ORDERS :	1.  Matter referred to Registry for re-hearing.
CATCHWORDS:	INDUSTRIAL LAW - REVOCATION OF WHS ENTRY PERMITS - fundamental jurisdiction error - parties to the proceeding did not raise a significant
jurisdictional point in hearing or in submissions -
matter relisted at initiative of Commission - Commission heard matter unaware fundamental step in process prior to hearing had not been taken - subsequently steps taken by the Commission were
ultra vires
CASES:	Work Health and Safety Act 2011, s 138, s 139, s 140
APPEARANCES:	Mr R. King, K & L Gates for the Applicant. Ms K. Inglis, The Electrical Trades Union of Employees Queensland for the Respondent.
Decision

[1]      The substantive application before the Commission relates to a claim by DP World Brisbane Pty Ltd to revoke the Workplace Health and Safety Entry Permit issued to Mr Garry Rogers, an Organiser with The Electrical Trades Union of Employees Queensland (WHS/2013/24).

[2]     This matter was allocated to the Commission (as constituted) for arbitration with specific hearing dates mentioned.

[3]     That hearing has finalized and submissions have been filed by the parties in October 2014.

[4] Upon researching the matter, it has become apparent to the Commission that a Show Cause Notice pursuant to s 139 of WHS Act was never issued.

[5]     The issue was not raised by either party during the course of the proceedings nor in final submissions.

[6]     The Commission immediately recalled the parties and advised them of this point and requested that submissions be undertaken by them as to whether the Commission had power to determine the matter in the absence of a Show Cause Notice.

[7]      The Commission requested the presence of the Office of Fair and Safe Work Queensland at the further hearing. That Office was not a party to the proceedings but it was considered it may have been able to assist the parties and the Commission particularly as to its understanding of the WHS legislation within the context of whether there had been any recent amendments to that legislation.

[8] The only information relied upon from that Office was that the legislation had not altered as a consequence of any amendments to the WHS Act.

The Respondent’s position

[9]     The Respondent says that the substantive application is void ab initio and must be dismissed.

[10] Relevantly s 138 of the WHS Act at ss (3) states that:

"The applicant must give written notice of the application, setting out the

grounds for the application, to the person who holds the WHS entry permit

and the union concerned."

and s 139 states that the Commission must permit the WHS entry permit holder to

show cause.

[11] Further, s 139 states that:

(1)

If, on application under section 138, the commission is satisfied that a
ground may exist for the revocation of the WHS entry permit under
section 138(2), the commission must -

(a)	give the WHS entry permit holder written notice (a show cause notice); and
(b)	if the commission considers it appropriate, suspend the operation of the WHS entry permit until the commission decides the application for revocation.

(2)

The show cause notice must -

(a)	contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the commission written reasons explaining why the WHS entry permit should not be revoked; and
(b)	be accompanied of a summary of the reasons for the application; and
(c)	if applicable, be accompanied by a notice of suspension of the permit.

[12] If the Commission is satisfied on the balance of probabilities about any of the matters in s 138(2), it may make one or more of identified orders pursuant to s 140 of the WHS Act.

[13] Submitted is that the scheme of the WHS Act to revoke a WHS entry permit is set out at sections 138-140 of the WHS Act, which provide a logical and orderly process for determination of this type of application.

[14] The Respondent submits that there is no power for the Commission to consider this application unless and until s 139 has been complied with, and everything done so far in relation to the application has been without power.

The Applicant’s position

[15] The Applicant says that when read together, sections 138, 139 and 140 of the WHS Act provide for the Show Cause Notice as a "stand alone step". It states that that the language of s 138 does not make the Application contingent upon the Show Cause Notice being issued. Rather, the Show Cause Notice is contingent upon an application being commenced.

[16] The only limitation in s 139 is that the Commission must be satisfied that a ground may exist for the revocation of an entry permit before there is a need to issue the Show Cause Notice.

[17] It is submitted that there is no time limitation period for issuing a Show Cause Notice. Further comment is made of s 140 to the effect that the WHS Act does not limit the orders that the Commission may make in relation to the Application. The only requirement to be met before the Commission can make an order is that the Commission must be satisfied on the balance of probabilities of the matters in s 138(2).

[18] The submission is that if the Commission considers that it is a mandatory requirement to issue a Show Cause Notice before it makes an order under s 140 of the Act, the Commission may issue a Show Cause Notice now, and adopt or accept the evidence adduced in the Application hearing and the parties' submissions in the Application as the response to the Show Cause Notice.

[19]  The Applicant expressed concern regarding the possibility of the Commission declaring the application void, and/or requiring a re-hearing as it would constitute a significant prejudice to both parties in terms of cost and the time required for another hearing.

Consideration of the submissions and decision

[20]  It was not until I was preparing my reasons for decision that I discovered that a Show Cause Notice had not been issued.

[21]  Given that neither party had brought this fundamental jurisdictional matter to my attention, I had proceeded, as I was entitled to do, on the basis that the matter was properly before me.

[22]  As soon as I became aware of the issue I immediately called the matter on to enable the parties to address me on what flowed from the lack of a Show Cause Notice.

[23] Section 139 of the WHS Act has not been followed. Had it been followed the Commission would have to:

	"Be satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2);
	Give the WHS entry permit holder a "show cause notice"; and
	Afford the WHS entry permit holder the opportunity to give the Commission written reasons explaining why the WHS entry permit should not be revoked not later than 21 days after the show cause notice is given".

[24]  It is my view that the failure to have addressed this issue has rendered the steps which were taken by the Commission to be ultra vires the power of the Commission.

[25]  Having considered the submissions, I refer the matter back to the Registry for re-