Rovera Scaffolding (ACT) Pty Ltd v Director-General of the Chief Minister, Treasury and Economic Development Directorate (Administrative Review)
[2016] ACAT 127
•23 November 2016
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, 225List of
Texts/Papers cited: Australian Standards AS 1576, AS 4576
Tribunal: Senior Member A Anforth (Presiding)
Senior Member R PegrumDate of Orders: 23 November 2016
Date of Reasons for Decision: 23 November 2016
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 (the WHS Act). 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 the ACT 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 Mr Perrott, 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]
[1] T documents page 34
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]
[2] T documents page 20
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 6 November 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]
[3] Transcript of Proceedings 29 June 2015 page 95, line 20
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 5 December 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]
[4] T documents pages 59-64
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]
[5] Transcript of Proceedings 29 June 2015 page 2, line 25
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]
[6] Transcript of Proceedings 30 June 2015 page 147, line 30; page 177, line 17; page 186 line 10
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’.
24.These statutory issues and the choice made by Mr Mason caused the Tribunal considerable difficulty. The submissions of the parties on issues of statutory interpretation and administrative law were, for the most part, contradictory and strongly argued.
25.The legislation requires that for an improvement notice to be issued under section 191 there must be a reasonable belief that there is a breach of a provision in the Act or Regulation. In so far as the Act and the Regulation do not make compliance with either a relevant Australian Standard or the manufacturer’s directions mandatory, section 191 is not, and cannot be, satisfied merely by non-compliance with a relevant Australian Standard or manufacturer’s direction. Nor is section 191 satisfied merely by a reasonable belief in the existence of a risk to health and safety if that risk does not also constitute a breach of a specific provision in the Act or Regulation.
26.Regulation 225(4) relates explicitly to scaffolding and it contains its own power to require rectification where there is seen by a competent person to be a risk to health and safety in the erection of the scaffolding. It does not rely upon any power or operation of section 191. It does not require that there be any breach of a provision of the Act or Regulation or of any breach of the relevant Australian Standard or manufacturer’s direction. In this sense regulation 225(4) is a distinctly different provision to section 191.
27.In the present context there would seem to have been two courses of action open to Mr Mason under the WH&S Act:
(a)issue an indication or notice under regulation 225(4) AND at the same time issue a separate improvement notice under section 191, for the same rectification work assuming that the separate requirements of each of the these provisions is satisfied (which is not so on the facts of this case); or
(b)make a choice between issuing an indication or notice under regulation 225(4) OR an improvement notice under section 191 for the rectification, but not both. In the present case the improvement notice under section 191 citing a breach of regulation 225(4) would need to:
(i) rely upon the same defects that were available to Mr Mason under regulation 225(4) notwithstanding that there has been no indication or notice under regulation 225(4) and hence no failure to comply with that indication or notice; and
(ii) show the defect relied upon in the improvement notice is in fact one that could have been the subject of a notice under section 225(4) that is, one that goes to health and safety and not just a breach of the Act or regulations per se; and
(iii) was at the same time also a breach of the Act or Regulations.
28.Mr Mason appears to have adopted the second course of action. The applicant asserts that this choice was not open to Mr Mason because:
(a)there was no breach of any provision of the Act or regulations identified by Mr Mason, which is essential for a valid section 191 notice. Mr Mason only identified an indication or order under regulation 225(4);
(b)in so far as Mr Mason nominated the relevant breach as being that of regulation 225(4), he was simply wrong. There had been no separate or prior indication or notice under that regulation and hence no failure to comply with any such direction; ergo no breach of regulation 225(4);
(c)even if the section 191 notice is taken to also be a simultaneous notice or indication under regulation 225(4), Rovera did not fail to comply with that notice and so did not commit any breach of the Act or Regulations;
(d)the issues identified for the purposes of regulation 225(4) did not entail any breach of any provision of the Act or regulations, it only involved a perceived risk to health and safety. Thus there is no breach of any provision of the Act or regulations as required by section 191; and
(e)section 191 and regulation 225(4) are separate statutory regimes that may be alternatives in individual cases if the criteria for their mutual operation existed, but should not be conflated in the manner that Mr Mason has done.
Relevant Legislation
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011
29.The object of the WHS Act is given at section 3:
3Object
(1)The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by—
(a)protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; and
(b)providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and
(c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and
(d)promoting the provision of advice, information, education and training in relation to work health and safety; and
(e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(f)ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and
(g)providing a framework for continuous improvement and progressively higher standards of work health and safety; and
(h)maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the ACT.
30.Section 18 of the Work Health and Safety Act 2011 defines ‘reasonably practicable’:
18What is reasonably practicable in ensuring health and safety
In this Act:
reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i)the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
31.Section 19(1) of the Work Health and Safety Act 2011 provides:
19Primary duty of care
(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a)workers engaged, or caused to be engaged, by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
32.Section 26(1) of the Work Health and Safety Act 2011 provides:
26Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures
(1)This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.
(2)The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons—
(a)who install or construct the plant or structure at a workplace; or
(b)who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or
(c)who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or
(d)who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c).
33.Section 191 of the Work Health and Safety Act 2011 provides:
191Issue of improvement notices
(1)This section applies if an inspector reasonably believes that a person—
(a)is contravening a provision of this Act; or
(b)has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
(2)The inspector may issue an 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.
34.Regulations 201 and 202 of the Work Health and Safety Regulation 2011 provide:
201Duties of persons conducting businesses or undertakings that install, construct or commission plant
(1)This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace.
(2)The person must ensure that the plant is installed, constructed or commissioned having regard to—
(a)the information provided by the designer, manufacturer, importer or supplier of the plant under the Act and this regulation; or
(b)the instructions provided by a competent person to the extent that those instructions relate to health and safety.
202Duties of persons conducting businesses or undertakings that install, construct or commission structures
(1)This section applies to a person who conducts a business or undertaking that installs, constructs or commissions a structure that is to be used, or could reasonably be expected to be used, as or at, a workplace.
(2)The person must ensure that the structure is installed, constructed or commissioned having regard to—
(a)the information provided by the designer, manufacturer, importer or supplier of the structure under the Act and this regulation; or
(b)the instructions provided by a competent person to the extent that those instructions relate to health and safety.
35.Regulation 225(3) and (4) in the Work Health and Safety Regulation 2011 provides:
225Scaffolds
...
(3)The person with management or control of a scaffold at a workplace must ensure that the scaffold and its supporting structure are inspected by a competent person—
(a)before use of the scaffold is resumed after an incident occurs that may reasonably be expected to affect the stability of the scaffold; and
(b)before use of the scaffold is resumed after repairs; and
(c)at least every 30 days.
Maximum penalty:
(a)in the case of an individual—$6 000; or
(b)in the case of a body corporate—$30 000.
(4)If an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety, the person with management or control of the scaffold must ensure that—
(a)any necessary repairs, alterations and additions are made or carried out; and
(b)the scaffold and its supporting structure are inspected again by a competent person before use of the scaffold is resumed.
Maximum penalty:
(a)in the case of an individual—$6 000; or
(b)in the case of a body corporate—$30 000...
The Australian Standards
36.Australian Standard 4576:1995 relevantly provides:
8.1: Introduction:
Section 8 provides general advice for the safe construction of the basic types of scaffolding.
8.2 General
The construction of a scaffold must comply with the relevant Australian or New Zealand occupational health and safety requirements.Those responsible for the erection, alteration and dismantling of scaffolds [in this case Rovera] should ensure that an erected scaffold complies with the relevant requirements of AS/NZS 1576.1, AS 1576.2, AS/NZS 1576.3, AS 1576.4 and AS/NZS 1576.5. The ways to achieve this are:
·Build the scaffold to the supplier’s information about the system.
·Build the scaffold in accordance with AS 1576.3 Supplement 1.
·Build the scaffold to a design that has been verified by a competent person as complying with the relevant requirements of AS/NZS 1576.1, AS 1576.2, AS/NZS 1576.3, AS 1576.4 and AS/NZS 1576.5.
The design specifications of a scaffold can be either a complex set of drawings or held in the mind of the responsible scaffolder. It is the verification that the design complies with the relevant requirements of AS/NZS 1576.1, AS 1576.2, AS/NZS 1576.3, AS 1576.4 and AS/NZS 1576.5 that is important, not the form the design takes…
8.6 RIGIDITY
Rigidity is achieved through the use of fabricated frame units, fixed mesh panels or diagonal
bracing systems. Where diagonal bracing systems are used, they should extend from the base of the scaffold to the top lift. Bracing does not have to extend to the height of the top guardrail. Typical transverse bracing is illustrated in Figure 8.6.
8.10 CONTAINMENT SHEETING
Containment sheeting is used for both safety and environmental purposes. Where work is carried out close to pedestrian or vehicular access, scaffolds that are sheeted down to hoarding level can minimize both the risk to the public and the area lost to public access...
Scaffolds fitted with containment sheeting have increased dead loads and are exposed to increased wind and rain loads. The design of such scaffolds and ties must be approved by a competent person, such as an engineer experienced in structural design.10.3 Prefabricated Scaffolds
10.3.3 Supplier’s information Suppliers must provide the following information:
• Instructions for erection, dismantling, transportation, storage and maintenance.
• Guidance on the type of scaffolding coupler to use when connecting ties and other accessories.
• The intended duty of the scaffold, including its maximum platform capacity.
...10.3.4 Design Where it is not practicable to follow the supplier’s information for the design of a scaffold, the design should be verified for compliance with AS/NZS 1576.1 by a competent person, such as an engineer experienced in structural design.
Applicant’s facts and contentions
37.On 25 March 2015 the applicant filed a statement of facts and contentions. The statement recited the historical facts and contended that:
(a)as a matter of law, the scaffolding was not required to conform with the Acrow instructions;
(b)compliance with the Australian Standards was not mandatory but the scaffolding did comply with the Standards;
(c)the scaffolding did not represent any risk to the health and safety of persons (regulation 225(4)) and so the jurisdictional basis for the application of regulation 225(4) did not exist;
(d)there was no other relevant contravention of the Act or Regulation that could provide a jurisdictional basis for the issue of the notice under section 191.
Respondent’s facts and contentions
38.The respondent’s statement of facts and contentions was brief. It asserted:
(a) the use of the Acrow system on site;
(b) the scaffolding was not erected in conformity with the Acrow manual;
(c) the diagonal bracing did not continue to the top working level; and
(d)the aggravating wind load effects of the polymer containment sheeting around the scaffolding.
The statement contended that the scaffolding was a risk to health and safety (regulation 225(4)) and that Mr Mason had a reasonable belief for that finding that is, Mr Mason was a competent person for the purposes of regulation 225(4).
39.On 22 May 2014 the respondent filed an expert report from Mr El-Ansary consulting structural engineer dated 14 May 2015. The report of Mr El-Ansary took issue with the reports of Mr Stodulka and Mr Bodsworth and opined that:
(a)the diagonal bracing did not extend to the top lift and there were 0.5m gaps between the points of affixation on the vertical beams;
(b)the scaffolding construction did not conform with the Australian Standards and there was no engineering certification justifying an alternative design;
(c)the design was structurally unsound and not capable of withstanding the loads the manufacturer anticipated; and
(d)the use of the reinforced polymer sheeting added to wind load and to the risk of failure.
40.On the morning of the second day Mr McCarthy advised the Tribunal that he did not intend to call Mr El-Ansary for the reason that he did not believe that Mr El-Ansary’s evidence was relevant.
41.On 25 June 2015 the respondent filed an ‘Index to Documents’ which included:
(a)a statement of reasons for the issue of the improvement notice prepared by Mr Coleman, solicitor for WorkSafe, dated 18 February 2015. This statement does not list any additional grounds to the reasons provided by Mr McCabe above;
(b)the request for internal review by the applicant and associated documents;
(c)the improvement notice;
(d)workplace visit records of 4 November by Mr Mason;
(e)the scaffolding handover certificate dated 6 November 2014 under the hand of Mr Olsson and Mr Perrott;
(f) various photographs;
(g)the reasons given by Mr McCabe upon internal review dated 5 December 2014;
(h) the manual for the Acrow Cuplok Scaffolding System;
(i) extracts from the Australian Standards; and
(j) a range of other documents that were thought to be relevant.
The hearing
42.The matter was heard by the Tribunal on 29 and 30 June 2015 and on 17 September 2015. A further hearing was held on 29 April 2016 to consider the responses of the parties to a number of questions from the Tribunal after the conclusion of the hearing on 30 June. The Tribunal had before it the documents provided by the respondent relevant to the decision under review (the T Documents) together with statements of facts and contentions submitted by the parties and witness statements and other documents tendered in evidence during the hearing.
43.The applicant was represented at the hearings by Mr P Walker SC. The respondent was represented at the hearings in June and September 2015 by Mr G McCarthy. The respondent was represented at the hearing in April 2016 by Mr R Clynes.
44.The respondent called evidence from Mr Greg Mason. The applicant called evidence from Mr Mark Savage, Mr James Bodsworth and Mr Andrea Stodulka.
45.The various documents that had been filed and served by the parties were for convenience accorded exhibit numbers on the basis that the marking of the documents as such did not connote that any part of them was beyond challenge at the appropriate time.
46.By way of opening for the respondent, Mr McCarthy said:
The respondent’s case is quite simple. Mr Mason went to the site. He saw non-complying scaffolding in various ways. He maintains that it was non-compliant for two reasons: (1) it didn’t comply with the manufacturer’s instructions, and [2] it didn’t comply with the [AS 4576]…hence an improvement notice was issued. [7]
So in very simple terms you have a situation where the scaffolding departed from compliance with the Australian Standards, departed from the manual, an improvement notice was issued.[8]
[7] Transcript of Proceedings 29 June 2015 page 11 lines 35-40
[8] Transcript of Proceedings 29 June 2015 page 14, line 25
47.Later Mr McCarthy qualified the above to the effect that compliance with the manual was not mandatory if it was not practicable to comply with it.[9] Compliance with the Australian Standards was not mandatory if an alternative approved engineering solution was developed; but no such alternative solution had been developed or approved in this case.[10] Mr McCarthy later more fully developed these submissions.
[9] Transcript of Proceedings 29 June 2015 page 15, line 40
[10] Transcript of Proceedings 29 June 2015 page 15, line 5
48.Mr McCarthy submitted that the only merits review relevant to section 191(2) was whether Mr Mason’s decision to issue the notice was justified on the facts of the case before him.[11] When pressed with the scenario that Mr Mason may not have sought other relevant information that was available at the time of the issue of the notice, Mr McCarthy responded only that such were not the facts of this case.[12]
[11] Transcript of Proceedings 30 June 2015 page 108 lines 25-40
[12] Transcript of Proceedings 30 June 2015 page 109, line 15
49.By way of opening for the applicant, Mr Walker SC conceded that the erection of the scaffolding did not comply with the Acrow manual in the manner alleged by the respondent. He did not concede non-compliance with the Australian Standards and he took issue with any requirement at law that Rovera comply with the Acrow manual or the Australian Standards.[13] He conceded that no alternative engineering solution had been approved but contended that Mr Stodulka had ‘agreed’ that the alternative method adopted was safe.[14]
[13] Transcript of Proceedings 29 June 2015 page 15, lines 5-15
[14] Transcript of Proceedings 29 June 2015 page 16, line 30; page 24, line 40; 26, lines 5-20
50.Mr Walker SC challenged Mr McCarthy to point to the statutory provision that made compliance with the Australian Standards or manufacturer’s manual mandatory as opposed to being only a relevant consideration.[15] Mr McCarthy responded by stressing the practical role of the Australian Standards in construction. When pressed by the Tribunal to nominate the statutory basis for the Australian Standards being mandatory, Mr McCarthy was unable to do so. The Tribunal then advised that it would proceed on the basis that the Australian Standards were industry practice but not mandated at law.[16]
[15] Transcript of Proceedings 29 June 2015 page 20, line 40; page 25, lines 35-45
[16] Transcript of Proceedings 29 June 2015 page 22, line 20; page 25, line 25
51.Mr Walker SC contended that the reasonableness of Mr Mason’s belief for the purposes of section 191(1) was to be judged by reference to the information before Mr Mason as well as the information that Mr Mason could have been aware of had he made reasonable inquiries on the adequacy of the scaffolding.[17]
[17] Transcript of Proceedings 30 June 2015 page 106, line 35; page 107, line 5
52.By the time of the hearing the building had been completed and the scaffolding had been removed. The form of the scaffolding at the time and the alleged defects were the subject of many photographs exhibited in the Tribunal. It was difficult to translate these photographs and discussions into words for the purpose of this decision. The reader will need to accept some degree of generality in the descriptions provided above and below.
53.A further difficulty in the matter arose from substantial omissions and errors in the transcripts of the proceedings. The parties levied strong criticisms of the inefficiency of the transcript preparations with which the Tribunal agrees.[18]
[18] Transcript of Proceedings 17 September 2015 page 3, line 25
The Evidence
The evidence of Greg Mason
54.Mr Mason was a Worksafe inspector appointed under section 156 of the WHS Act. On 22 May 2015 the respondent filed a witness statement from Mr Mason dated 10 April 2015.[19]
[19] Exhibit R1
55.Mr Mason adopted his statement, which was the subject of considerable deletion of inadmissible material. The net document said:
(a)Mr Mason observed Acrow Cuplok scaffolding at the site which he described in the statement;
(b)he observed the reinforced polymer containment sheeting “which causes the scaffolding to have increased dead loads and be exposed to increased wind and rain loads”;
(c)he observed the bracing, including the diagonal bracing which did not extend to the top working level and which he said was inconsistent with the Acrow manual and the Australian Standards;
(d)he observed the 0.5 metre gaps in the affixation points on the vertical standards; and
(e)he described a conversation with Mr Perrott who told him that the bracing complied with the Australian Standards.
56.Mr Mason gave oral evidence and appeared to be a witness of credit. He stated that he was an electrician by trade. He told the Tribunal he had no formal qualifications in scaffolding but had undertaken training in scaffolding and yearly training at CIT in Canberra.[20] Mr Mason gave evidence that he had “over 40 odd years working in and around construction sites, and as an inspector for the last 7 years with WorkSafe attending sites where scaffolding has blown over in wind events, yes, I consider myself competent to make that judgment based on if it complied with guidelines”.[21] The Tribunal had no reason to doubt the competence of Mr Mason.
[20] Transcript of Proceedings 29 June 2015 page 57, line 5
[21] Transcript of Proceedings 29 June 2015 page 57, line 14
57.Mr Mason affirmed in cross-examination that his opinion on the health and safety issues arose as a consequence of the failure to comply with the manufacturer’s manual and the Australian Standards.[22]
[22] T documents pages 54, 55, 57
58.Mr Mason was particularly concerned by the presence of the polymer cladding, saying “once cladding goes on it puts a different picture on the layout of the scaffolding with safety features…I formed the belief on the Notice because the building was clad”. Mr Mason told the Tribunal that if there had been no cladding he would not have issued the improvement notice: “I would have just asked for it to get fixed but there was urgency because the total number of braces that I saw was short and I believed we needed to take action.”[23]
[23] Transcript of Proceedings 29 June 2015 page 79, line 42; page 80, line 10
59.In cross examination, Mr Mason conceded that the Rovera Cuplok scaffolding system is not manufactured by Acrow but he agreed with the statement of Mr Walker that “for its construction it uses the same kind of technique, being a Cuplok, for its assembly.”[24] Asked by Mr McCarthy “with respect to the manner in which the scaffold ought to be assembled, does it make any difference as to who manufactured it”, Mr Mason replied “no”.[25]
The evidence of Mark Savage
[24] Transcript of Proceedings 29 June 2015 page 58, line 4
[25] Transcript of Proceedings 29 June 2015 page 84, line 38
60.Mr Savage was the manager of Rovera, the applicant in this matter. The witness statement of Mr Savage was admitted as Exhibit A3. In his statement, Mr Savage said “the scaffolding system used on the Gungahlin site was a Rovera system modular Cuplok scaffold which was supplied and erected by Rovera”. Mr Savage stated that the Rovera system was based on a “common use scaffold system” and that “one obvious difference between the Acrow System and the Rovera system is that the Acrow system is galvanised whilst the Rovera system is painted”. Mr Savage stated that the Rovera system had been independently tested in New South Wales.[26]
[26] Statement of Mark Savage at [50]-[54]
61.Mr Savage annexed to his statement the scaffolding plans for the site together with “certificates of competency for the people who signed off on the scaffolding handover.” Mr Savage gave evidence that each of these people had been employed by Rovera for a number of years.
62.In his statement, Mr Savage gave his recollection of a conversation he had with Mr Mason on site about a week after the issue of the improvement notice, during which Mr Mason said “the scaffold was in danger of imminent collapse” to which Mr Savage replied “scaffolds do not collapse on our watch big fella.” At that point, Mr Mason told him that the conversation had become personal and the meeting should be adjourned. Mr Savage said Mr Mason had taken “personal offence at a remark where none was intended.”[27]
The evidence of James Bodsworth
[27] Exhibit A3 and T documents pages 94-95; Statement of Mark Savage at [18]-[20]
63.Mr Bodsworth was Regional Environmental Health and Safety Manager for Lend Lease. He told the Tribunal that he was not representing Lend Lease at this hearing.[28]
[28] Transcript of Proceedings 30 June 2015 page 149, line 1
64.On 31 March 2015 the applicant filed a witness statement from Mr Bodsworth.[29]
[29] Exhibit A2
65.The statement from Mr Bodsworth:
(a)recounted his experience in scaffolding and construction over 30 years;
(b)stated that he visited the site once per fortnight during construction during which time he observed the scaffolding being erected;
(c)Lend Lease required that the scaffolding was inspected every two weeks by a licensed scaffolder; these inspections took place and a scaffolding tag was placed in situ upon each inspection;
(d)the scaffolding was erected by licensed and competent scaffolders to the plans provided by Rovera that Mr Stodulka had approved;
(e)the scaffolding was inspected and approved by Mr Stodulka in March 2014;
(f)scaffolding handover certificates were provided by the people erecting the scaffolding;
(g)opined that the scaffolding complied with relevant Australian Standards and represented no health and safety risk;
(h)expressed the view that there was no strict requirement to comply with manufacturer’s guidelines but in any event the scaffolding did so comply;
(i)the requirement for the diagonal bracing to extend to the top working level only required that it be affixed to the nearest fixing point to the underside of the working level platform;
(j)the point for fixing diagonal face bracing is predetermined by the design of the standards which have lugs welded at regular intervals;
(k)installation of the diagonal face braces conformed to both the manufacturer’s specifications and the Australian Standards;
(l)the scaffolding was fixed by bolts to the building and lateral displacement could not have taken place; and
(m)he inspected the works to ensure compliance with “relevant WHS requirements and Lend Lease EHS policies and procedures.”
66.Mr Bodsworth adopted his statement and gave further oral evidence. The thrust of Mr Bodsworth’s evidence was that the scaffolding was in truth over-engineered by the presence of various safety features not required in the Acrow manual or the Australian Standards. Mr Bodsworth stated that these features included the bolting of the scaffolding vertical beams to the building masonry structure[30] and additional ledgers and beams.[31] In his opinion, the presence of these additional features, particularly the bolting of the scaffolding to the building structure, more than compensated for the absence of diagonal bracing to the top lift and any issue about the 0.5 metre gap in affixation points.[32] He described this way of assessing the scaffolding as an ‘holistic approach’.[33]
[30] Transcript of Proceedings 30 June 2015 page 121, line 5
[31] Transcript of Proceedings 30 June 2015 page 136, line 40
[32] Transcript of Proceedings 30 June 2015 page 118, line 40; page 136, line 30
[33] Transcript of Proceedings 30 June 2015 page 119, line 35; page 126, line 10; page 143, line 10
67.Notwithstanding Mr Bodsworth’s tendency to be evasive in some of his answers, he did appear to the Tribunal to be a man of considerable experience in the industry who had a relatively simply story to tell, namely that the structure was over-engineered and therefore was safe.
68.Mr Bodsworth gave evidence that “the scaffold was in good fettle and there is no risk to health and safety.”[34] In his opinion, the gap of approximately half a metre between the braces “does not pose a risk to the scaffolding nor to health and safety.”[35] The primary function of the diagonal bracing is “to keep the scaffold squared up and reduce sideways movement”.[36]
[34] Transcript of Proceedings 30 June 2015 page 119, line 43
[35] Transcript of Proceedings 30 June 2015 page 119, line 1
[36] Transcript of Proceedings 30 June 2015 page 132, line 29
69.Mr Bodsworth opined that there was no health and safety risk in the manner that the scaffolding had been erected.[37] Mr McCarthy cross examined Mr Bodsworth on the issue of whether he could ‘guarantee’ the safety of the structure in the absence of the two issues of non-compliance noted by Mr Mason and the presence of the polymer mesh. The Tribunal observed that risks to health and safety are a matter of degree and that the legislation does not contain any absolutes in the nature of a ‘guarantee’. In any event, even the safety of a structure strictly complying with the Australian Standards could not be ‘guaranteed’. The thrust of Mr Bodsworth’s response was that the over-engineering on site provided a greater degree of safety than would a structure that complied only with the Acrow manual and the Australian Standards.
[37] Transcript of Proceedings 30 June 2015 page 199, line 40; page 141, lines 20-25; page 142, line 35
70.Mr Bodsworth said that the role of the polymer mesh had been misunderstood by other witnesses. He said that the mesh is fixed to the scaffolding in a manner to release at certain wind speeds and so represented no danger in high winds.[38]
[38] Transcript of Proceedings 30 June 2015 page 120, line 20
71.Mr Bodsworth reluctantly conceded that the scaffolding as built did not fully comply with the diagrams in the Acrow manual, namely the absence of diagonal bracing to the top lift and the 0.5m gaps.[39] Mr Bodsworth confirmed that the ‘top lift’ refers to “the deck that the scaffolders stand on.”[40] He told the Tribunal he did not know where the additional 34 braces had been fitted.[41]
[39] Transcript of Proceedings 30 June 2015 page 140, line 40
[40] Transcript of Proceedings 30 June 2015 page 149, line 40
[41] Transcript of Proceedings 30 June 2015 page 119, line 33
72.Mr Bodsworth said he was “reasonably familiar” with the Australian Standards but was unsure about clause 8.6 in AS 4576 regarding rigidity. He conceded that there were “a couple of braces missing” but said “you’ve got to look at it holistically from the base of the scaffold all the way up the scaffold.”[42] He said the scaffold was in accordance with the Standards and he stood by that.[43]
[42] Transcript of Proceedings 30 June 2015 page 134, line 10
[43] Transcript of Proceedings 30 June 2015 page 135, line 15
73.The Tribunal asked Mr Bodsworth if he could explain “why it complies with the Standard when it does not show that the bracing extends from the base of the scaffold to the top of it”.[44] Mr Bodsworth agreed finally that the bracing shown in the photograph does not go to the top lift and “that it needs to go to the top lift.”[45] However Mr Bodsworth said “there are other things that play a part in it too, at the end of the day, and I stand by my previous statement. There was not a risk to health and safety.”[46]
[44] Transcript of Proceedings 30 June 2015 page 135, line 27
[45] Transcript of Proceedings 30 June 2015 page 135, line 15
[46] Transcript of Proceedings 30 June 2015 page 136, line 31
74.In paragraph 13(c) of his statement, Mr Bodsworth said that the scaffolding complied with the manufacturer’s instructions. Asked by Mr McCarthy “do you have a copy of the manual” he replied “no…I have seen the instructions. I do not have a copy of the instructions but I am not sure which instructions should have been followed in regard to this scaffolding. Is it Rovera’s or…”.[47] Asked later had he actually seen manufacturer’s instructions prepared by Rovera, Mr Bodsworth said “no, I have not”.[48]
[47] Transcript of Proceedings 30 June 2015 page 137, line 12
[48] Transcript of Proceedings 30 June 2015 page 141, line 10
75.Mr Bodsworth was taken to the words in the Acrow manual requiring bracing “all the way to the top of the scaffold” and the diagram showing this.[49] Shown photograph 42, Mr Bodsworth agreed that the photograph did not show compliance with the Acrow manual “if those manufacturers are relevant.”[50]
The evidence of Andrea Stodulka
[49] Acrow manual section 14
[50] Transcript of Proceedings 30 June 2015 page 139, line 1
76.The statement from Mr Stodulka provided his curriculum vitae and said:
(a)he first attended the site on 19 March 2014 and certified the scaffolding plan dated 18 March 2014. At the time only some lower levels had been constructed;
(b)he had a copy of the scaffolding plans at the time of certification;
(c)his certification was intended to apply to the whole of the proposed scaffolding in accordance with the plans he sighted;
(d)he noted some features of the existing and proposed scaffolding that he considered to be excess to the requirements of the Australian Standards. In this context, Mr Stodulka referred to the bolting of the scaffolding to the masonry of the building and the use of ‘ladder beams’ and ‘horizontal ledgers’;
(e)the 0.5 metre gaps between the points of attachment of the diagonal bracing were in conformity with the manufacturer’s designs and industry practice; and
(f)he visited the site again on 11 November 2014 after the rectification had been undertaken. He did not think the scaffolding that existed prior to the rectification work was deficient or created any risk to health and safety.[51]
[51] Exhibit A1
77.Mr Stodulka adopted his statement and gave further oral evidence. He shared the view of Mr Bodsworth that the scaffolding as built may not have strictly complied with the Acrow manual or the Australian Standards[52] but contended it was safe by virtue of other safety features included in the structure that were not a feature of the Acrow manual or the Australian Standards.[53] Apart from the additional safety matters referred to by Mr Bodsworth, Mr Stodulka gave evidence of the buttressing at the corner wall verticals of the scaffolding. Mr Stodulka noted that the horizontal scaffolding beams were buttressed at the 90-degree corners of the building in an interlacing manner, much like standard brickwork at the corners of buildings.[54]
[52] Transcript of Proceedings 30 June 2015 page 177, line 30
[53] Transcript of Proceedings 30 June 2015 page 166, line 5; page 176, line 35; page 181, line 40; page 191, line 15
[54] Transcript of Proceedings 30 June 2015 page 166, line 10-20; page 188, line 5
78.Mr Stodulka opined that the corner buttressing provided such a measure of additional rigidity in the scaffolding structure that the diagonal bracing was in fact redundant: “I would say that the diagonal bracing made very little contribution to the stability of the building, whether it had mesh on it, the scaffolding, or not”.[55] In his opinion, a small number of missing diagonals below the top lift were essentially irrelevant to the structural safety of the scaffolding and the 0.5 metre gap in the affixation points is ”totally adequate…from a structural point of view”.[56]
[55] Transcript of Proceedings 30 June 2015 page 176, line 20; page 177, line 15, page 166, line 10
[56] Transcript of Proceedings 30 June 2015 page 185, line 25
79.Mr Stodulka qualified his acceptance of non-compliance with the Australian Standards. He said that the systems shown in the Standards were in the alternative to other methods approved by competent people. The present structure satisfied this alternative.[57] The processes in the Australian Standards were only one of the possible methods of achieving safety.[58]
[57] Transcript of Proceedings 30 June 2015 page 174, line 30; page 181, line 40
[58] Transcript of Proceedings 30 June 2015 page 181, line 40
80.There was an issue concerning Mr Stodulka’s familiarity with the Australian Standards. He seemed not to know of the wording of the terms in the Standards until these were put to him by Mr McCarthy.[59]
[59] T documents page 169
81.During the course of Mr Stodulka’s evidence it became apparent that the scaffolding had not been constructed strictly in accordance with the plans he had approved. For unknown reasons a stairwell shown on the plans had been constructed at a different location.[60] Mr Stodulka said that this made no difference to the rigidity and safety of the structure.[61]
[60] Transcript of Proceedings 30 June 2015 page 172, line 30
[61] Transcript of Proceedings 30 June 2015 page 190, line 30
82.Some parts of Mr Stodulka’s evidence were confusing to the Tribunal. In his Statement Mr Stodulka says that the horizontal ledgers on this project are:
…at one metre vertical intervals and fully attached to each standard up the entire face of the scaffold…the (Australian) Standard and the (Acrow) manufacturer’s recommendation calls for these elements to be fixed at two metre intervals. By ’doubling up’ on horizontal ledgers Rovera scaffolding added very significantly to the lateral stability of the structure.[62]
[62] Statement of Andrea Stodulka at [10b]
In explaining this situation, Mr Stodulka referred to a number of the photographs, which show scaffold lifts of two metres. It seemed to the Tribunal that the ‘doubled up’ ledger replaces the handrail which would otherwise be placed in the same position at a height of one metre above the working level. If this is the case, it does not appear to the Tribunal that this arrangement adds to the stability of the structure as stated by Mr Stodulka.
83.Mr Stodulka also said the structural members in the Acrow system are based “on a wall thickness of 3.5. The Rovera system has got a wall thickness of 4.8, so it is a totally different structural strength…its substantially thicker wall thickness and that would mean that it is probably 25 percent stronger…it has been tested and, you know, certified to be 25 percent stronger.”[63] Later evidence showed these statements to be untrue. The parties and the Tribunal are now agreed that the diameters and thicknesses of the steel standards, transoms, ledgers and longitudinal braces in the two systems are identical.[64]
[63] Transcript of Proceedings 30 June 2015 page 186, line 31-35; page 193, line 23-28
[64] Transcript of Proceedings 29 April 2016 page 6, line 21
84.At the end of Mr Stodulka’s evidence the parties advised the Tribunal that there would be no further evidence called by either party. The parties were in agreement that the issues were primarily issues of law and the evidence to date should be sufficient to resolve the matter. A timetable was set for the parties to file and serve a summary of their arguments on the points of law, after which the matter would be re-listed for brief oral submissions.
Applicant’s summary of argument
85.The applicant filed its summary of argument on 17 July 2015. The applicant noted that section 191 of the WHS Act contains a two step process:
(a)firstly, section 191(1) requires Mr Mason to have formed a reasonable belief that a contravention of the Act or Regulation had occurred;
(b)secondly, section 191(2) permits the issue of the improvement notice if the circumstances of the case warrant that course of action.
86.The applicant submitted that the Tribunal was required to:
(a)determine on the evidence whether the belief formed by Mr Mason was a reasonable one (section 191(1)); and
(b)if so, then determine whether the contravention warranted the issue of the improvement notice (section 191(2)).
87.The applicant submitted that the reviewable decision is the decision to issue the notice at (b) immediately above; and the question at (a) immediately above is a jurisdictional fact that must exist before the reviewable decision can be lawfully made. It was said to be the Tribunal’s task to decide both issues. It was said to be the Tribunal’s role to be satisfied on the evidence before Mr Mason that an objectively reasonable opinion could have been formed for the purposes of section 191(1) that a contravention of the Act had occurred.
88.The terms of regulation 225(4) have been addressed above. Regulation 225(4) arises where “an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety.” The applicant submitted that Mr Mason purported to form a ‘reasonable belief’ only on the basis that a contravention of regulation 225(4) had occurred. Regulation 225(4) was the only provision of the legislation that was cited by Mr Mason in the notice and by Mr McCabe in the reviewable decision.
89.The applicant noted that the only reason advanced by Mr Mason in the notice was an alleged failure to erect the scaffolding in accordance with the manufacturer’s instructions and hence this defect must logically be both the cause of the risk to health and safety for the purposes of regulation 225(4) and a breach of the Act or Regulation for the purposes of section 191.
90.The applicant submitted that no breach of regulation 225(4) had occurred for several reasons and nor was regulation 225(4) capable of being contravened on the facts of this case. If regulation 225(4) was not a provision that was capable of contravention, or if there was in fact no contravention of it, then no reasonable belief could have been formed for the purposes of section 191(1) that such a breach had occurred and hence, no notice could issue under section 191(2).
91.The applicant argued that regulation 225(4) does not impose any duty to avoid risks to health and safety; rather it imposes a duty to carry out repairs etc to the identified defective scaffolding. It was the contention of the applicant that regulation 225(4) could only be contravened if the repairs ordered or indicated under that regulation by Mr Mason were not carried out. The applicant said that these were not the circumstances that confronted Mr Mason.
92.The applicant pointed to Mr Mason’s (and Mr McCabe’s) erroneous belief that the scaffolding was manufactured by Acrow and therefore the relevant manufacturer’s instructions were those of Acrow. The scaffolding was in fact Rovera’s own scaffolding. The respondent had not assessed the erection of the scaffolding against Rovera’s own instructions. There was no evidence as to what and where the instructions were for the Rovera product and the Tribunal sought clarification about this at the close of the formal hearings.
93.In the alternative, the applicant argued that there is no legislative requirement to erect scaffolding in accordance with a manufacturer’s manual; regulations 201 and 202 only go so far as to require that Rovera “have regard to” the “information provided by the… manufacturer”, that is, that Rovera have regard to the information that it provided to itself.
94.The applicant argued that regulations 201 and 202 refer to manufacturer’s instructions as only one of two potential approaches. The second alternative is to erect the scaffolding having regard to “the instructions provided by a competent person to the extent that those instructions relate to health and safety.”
95.The applicant submitted that there was no requirement to comply with AS 4576. In the alternative, it was argued that the scaffolding as erected did comply with the Standard. The applicant pointed to paragraph 8.2 of AS 4576, which provides for a design verified by a competent person. In the present case, the applicant argued that Mr Stodulka (engineer) and Mr Bodsworth (qualified scaffolder) had each performed this role.
96.The applicant submitted that Mr Mason (and Mr McCabe) fell into four errors of law in their respective decisions and that these errors negated the existence of the formation of any valid belief for the purposes of section 191(1) and the issue of any notice under section 191(2). It was submitted that they:
(a)wrongly assumed that compliance with the manufacturer’s instructions was a mandatory statutory requirement;
(b)wrongly assumed that the scaffolding was Acrow scaffolding;
(c)failed to ask whether Rovera ‘had regard to’ its own instructions or information provided to itself; and
(d)failed to inquire or to take account of instructions provided by a competent person concerning the erection of the scaffolding.
97.The applicant pointed to the evidence of Mr Mason to the effect that the possibility of collapse was “relatively low”. The applicant relied upon this statement and other matters in submitting that Mr Mason did not form any view that there was other than a minimal risk to health and safety. The applicant noted Mr Mason’s evidence that “if the scaffolding didn’t have any cladding on it at all I wouldn’t have had any concerns, I would have asked them to fix it.”
Respondent’s summary of argument
98.The respondent filed its summary of argument on 10 August 2015. On behalf of the respondent, Mr McCarthy submitted that section 191(1) requires the Tribunal to be satisfied that Mr Mason formed the requisite opinion at the time of issuing the notice and that it was a reasonable opinion. It was not the role of Mr McCabe on internal review, nor of the Tribunal, to form its own view on the matter; the Tribunal’s role under section 191(1) is limited to being satisfied that Mr Mason’s opinion was a reasonable one.
99.Mr McCarthy rejected the argument of the applicant that regulation 225(4) is not a provision that could or had been contravened at the time Mr Mason issued the notice - “section 225(4) mandates actions to be taken where an inspection indicates that a scaffold creates a risk to health and safety.” The respondent submitted that Mr Mason had conducted an inspection:
…which indicated to him that the scaffold created a risk to health and safety and he therefore issued an Improvement notice requiring a competent person to certify that any necessary repairs, alterations or additions had been made and the scaffolding had been re-inspected.[65]
[65] Respondents summary of argument at [23]
100.Mr McCarthy noted that Mr Mason “did not prescribe what work needed to be done or that any work needed to be done.” If a competent person had agreed that the scaffold was structurally sound:
…the competent person could have provided a certificate to that effect and in that manner complied with the improvement notice. That was not done. Rather, 34 pieces of “missing” bracing were added to achieve compliance with item 3.16 of the inspection report.[66]
[66] Respondent’s summary of argument at [15]
101.The respondent also argued for the first time that section 19(1) of the WHS Act may provide an alternative basis for Mr Mason’s belief that a provision of the Act or Regulations had been breached and hence any decision to issue the notice. If the construction for which the applicant contends were to be accepted, the respondent said it remains the case that Inspector Mason reasonably believed that the applicant was not conducting its business to ensure, so far as reasonably practicable, the health and safety of workers on the site.
102.In that situation, the respondent submitted that section 191(2) permitted Inspector Mason to issue an improvement notice to enforce the duty under section 19(1).
103.Whatever the merits of the section 19 argument, the fact is that it was not relied upon by Mr Mason to issue the notice and it is now not open to the respondent to purport to retrospectively rely upon it.
104.The respondent contended that there was little difference between the Acrow Cuplok system and Rovera’s Cuplok system such that the Acrow manual was relevant. The respondent submitted in the alternative that it was reasonable for Mr Mason to assume that the system was that of Acrow and this factual error does not vitiate the reasonableness of his belief for the purposes of section 191(1) of the WHS Act.
105.It was submitted that Mr Mason had been aware that AS 4576 provided that where diagonal bracing systems are used they should extend from the base of the scaffold to the top lift. Mr McCarthy noted that Mr Perrott said at the time that the work complied with the Standards but Mr Perrott was not called as a witness. Mr Olsson, who co-signed the inspection report as the supervising scaffolder, was also not called to give evidence.
106.The respondent relied on the Australian Standards and asserted non-compliance. In discourse the Tribunal noted that contravention of the Australian Standards is relevant only if it also amounts to a contravention of the Act. It was properly conceded by Mr McCarthy that a breach of the Australian Standards per se does not constitute a breach of any provision of the Act or Regulations.
107.The respondent denied that either Mr Stodulka or Mr Bodsworth provided any certification of the kind required by the Standards as an alternative method of compliance. Mr McCarthy expressed concern with the evidence of Mr Bodsworth to the effect that departure from the Australian Standards is acceptable by taking a ‘holistic approach’ to whether the scaffold is safe. He suggested “if the scaffold had failed, as Inspector Mason perceived could occur in the event of high winds, it is unlikely that anyone would defend non-compliant scaffold on the basis of a ‘holistic approach’.”[67]
[67] Respondents summary of argument at [16]
108.The respondent agreed with the applicant that the Tribunal must assess the issue of the notice on the basis of the facts as Mr Mason understood them: “the issue is whether Inspector Mason could reasonably have had that view when he issued the notice, not whether Inspector McCabe or ACAT might on review form that belief.” Mr McCarthy submitted that:
when assessing the correct or preferable decision, the Tribunal needs to “stand in the shoes” of Inspector Mason according to the facts and circumstances as he understood them on 4 November 2014…it is not a matter of determining with the benefit of later knowledge and information whether an improvement notice was necessary. It is a question of assessing whether there was an appreciable risk to health and safety and whether the issue of the Notice was a reasonable means of addressing that risk as perceived at that time”.[68]
[68] Respondent’s summary of argument at [20], [37], [38]
109.On the above premise, the evidence and opinions of Messrs Stodulka, Bodsworth and Savage were irrelevant because they were not available to Mr Mason at the time he issued the notice.
110.The principle of law embodied in the respondent’s submission immediately above was the subject of considerable argument during the hearing.
Reply to the respondent’s summary of argument
111.On 17 August 2015, the applicant filed its reply to the respondent’s summary of argument. Apart from repeating various submissions already noted above, the applicant further submitted that the new argument based on section 19(1) had no merit because:
(a)it was not in fact a ground that Mr Mason had regard to when issuing the notice. The evidence discloses unambiguously that Mr Mason formed his belief for the purposes of section 191(1) on the basis of a purported contravention of regulation 225(4) and, more particularly, on the alleged failure of Rovera to comply with the manufacturer’s instructions; and
(b)there had been no ventilation of the terms of section 19(1) at any time, including during the hearing. In particular there had been no evidence on, or consideration of, what is ‘reasonably practicable’ and ‘health and safety requirements’ of section 19(1).
112.The applicant took issue at this time with any assertion that the Rovera scaffolding system was materially the same as that of Acrow hence justifying the use of the Acrow manual. In particular, the applicant pointed to the evidence of Mr Stodulka concerning the additional strength of the members used by Rovera which provided an additional 25% structural strength over the Acrow system. (As noted earlier, the applicant later abandoned this argument when evidence was given as to the physical properties of the structural members in both systems, which, apart from the galvanised finish on the Acrow scaffold, showed the two systems to be identical.)
113.The hearing resumed on 17 September 2015 for oral submissions. Mr Walker SC summarised his written submissions. In its broadest form, Mr Walker SC argued that:
(a)section 191(1) did not entail any merits review by the Tribunal. The Tribunal’s role was limited to determining whether Mr Mason in fact formed a reasonable belief that a contravention of the Act or Regulations that occurred. In practical terms this came down to determining whether there was any feature of the intellectual process undertaken by Mr Mason that vitiated his declared belief by reason of some error of law. In the present case this error was said by the applicant to have arisen by reason of:
(i) Mr Mason’s failure to make proper enquiries of Rovera or of a person qualified in scaffolding before forming his belief;
(ii) Mr Mason’s reliance on an erroneous construction of regulation 225(4) to the effect that his observations on site were sufficient to activate regulation 225(4) and therefore justify a reasonable belief that a contravention of the Regulation had occurred;
(iii) Mr Mason’s factually erroneous belief that an Acrow system was being used;
(iv) Mr Mason’s erroneous belief that Rovera was obliged at law to comply with the Acrow manual; and
(v) Mr Mason’s erroneous belief that Rovera had not complied with the Australian Standards.[69]
(b)section 191(2) did entail traditional merits review.[70] The task for the Tribunal was to determine whether any contravention of the Act or Regulation (assuming there to be one) justified the issue of the improvement notice. The Tribunal was not limited to the information before Mr Mason and could have regard to later information to the extent that it related to the facts as they existed at the time of the issue of the notice, irrespective of whether Mr Mason was aware of this information at that time.[71]
[69] Transcript of Proceedings 17 September 2015 page 10, line 35; page 12, line 10; page 13, line 5, page 28, line 15
[70] Transcript of Proceedings 17 September 2015 page 11, line 40
[71] Transcript of Proceedings 17 September 2015 page 12, lines 5 & 30-35
114.Mr Walker SC indicated his concurrence with a view put by the Tribunal:
You could argue…that part of the reason why there is a merits review [s191(2)] is because Mr Mason…or someone in his position…has to act…fairly quickly and they have to call it as they see it on the spur of the moment, more or less [s191(1)]. Then you get the merits review process that allows you to take more considered time to work out…once all the facts are in about the truth of the matter at the time, was he right in an objective sense.[72]
[72] Transcript of Proceedings 17 September 2015 page 31, line 16
115.As comprehended by the Tribunal, the principal thrusts of Mr Walker SC’s submissions were as follows:
(a)Section 191(1) is only concerned with the formation of a reasonable belief by Mr Mason that a contravention of the Act (or Regulation) has occurred.
(b)Section 191(2) is only concerned with whether an improvement notice should issue to remedy the contravention that underpinned the belief in section 191(1).
(c)Section 191 does not per se raise any issue of risk to health and safety and could be activated by a contravention of the Act or Regulation that had no health and safety ramifications.
(d)The improvement notice can only issue under section 191(2) for the specific identified contravention of the Act or Regulation in the section 191(1) phase.
(e)The only contravention identified by the respondent was the contravention of regulation 225(4) expressly referred to in the notice. The validity of Mr Mason’s belief under section 191(1) and the merits of the decision to issue the notice under section 191(2) must be assessed by reference to whether there had in fact been any contravention of this regulation alone.
(f)Regulation 225(4) is not a provision that imposes any obligation on Rovera until such time as Rovera fails to carry out the repairs or alterations ordered or indicated by Mr Mason as a competent person in accordance with regulation 225(4)(a) and (b). This circumstance never arose and hence regulation 225(4) has no application and consequentially there is no lawful foundation for the belief formed under section 191(1) and the decision to issue the notice under section 191(2).
(g)In the alternative, regulation 225(4) is only concerned with scaffolding that ‘creates a risk to health and safety’ and is not specifically engaged simply by a contravention of the Act or Regulation. It would not be engaged by a contravention of the Act or Regulation that had no negative health and safety implications. For example, scaffolding may lack some feature required in the Act or Regulation but may be so constructed that it may be substantially safer than any structure that merely complied with the Act or the Regulation.
(h)In the present case, even if the scaffolding did not strictly comply with the Act or Regulation, it contained additional safety features that rendered it as safe an anything anticipated by the Act or the Regulation. Mr Walker SC said that “Mr Stodulka goes to some lengths to tell you the aspects of this scaffolding which were additional to any requirements which gave it added strength…ladder bracing; horizontal ledgers at one metre rather that at two metres as required; ties to the building including more than required; and diagonal bracing on every second or third bay when Acrow only recommends every fourth bay…the evidence from Mr Stodulka is that this was over-engineered…the requirement to minimise that risk has been entirely properly dealt with.”[73]
(i)The applicant did not concede that there had been any contravention of the Act or Regulation. Even if there may have been non-compliance with some aspects of the Acrow manual and some aspects of the Australian Standards, compliance with these documents was not mandated under the Act and so non-compliance with them did not constitute a contravention of the Act or Regulation.
(j)In the further alternative, the scaffolding was not a Acrow product and so reference to the Acrow manual constituted the adoption of an irrelevant consideration; and the Australian Standards had been complied with via the options within the Standards for alternative solutions approved by a competent person.
(k)The respondent’s case was only to the effect that there had been some alleged contraventions of the Acrow manual and the Australian Standards from which a lack of safety was inferred as a necessary consequence of this contravention. The applicant denied that any such automatic inference arose from a mere finding of a contravention of some part of the Act or Regulation let alone a contravention of the Acrow manual or Australian Standards which were respectively irrelevant and not mandatory.
(l)The scaffolding as built was safe and there was evidence of competent persons to this effect. There was no evidence that the structure was a risk to health and safety. The respondent’s case rested wholly on an inference of risk to health and safety to be drawn from the existence of some degree of non-compliance with the Acrow manual and the Australian Standards.
[73] Transcript of Proceedings 17 September 2015 page 26, line 11
116.Mr Walker SC took issue with Mr Mason’s evidence that he would not have issued the improvement notice but for the presence of the polymer cladding. Mr Walker SC drew attention to the evidence of Mr Bodsworth and Mr Stodulka that:
(a)the clips affixing the polymer were designed to give way at a certain wind velocity and would cause no additional stress on the structure at these speeds;
(b)the cladding had nothing to do with structural rigidity to which the bracing related, and so the presence or absence of the polymer cladding was irrelevant to the issue of the bracing;
(c)the above witnesses described the additional load from the polymer as being ‘minimal’ or ‘miniscule’. There was no evidence from the respondent in rebuttal.[74] The evidence on the precise nature of the polymer clips was sketchy. Mr Bodsworth had the opportunity to describe the clips in some detail when he was asked “did you see these clips actually used on the mesh at the Lend Lease site” but he neglected to do so.[75] Mr Mason said that he also could not recall the fixing method used, and so is in no position to deny the applicant’s assertions.
[74] Transcript of Proceedings 17 September 2015 page 16, lines 10-18
[75] Transcript of Proceedings 30 June 2015 page 120, line 34
117.Mr Walker SC noted the belated reliance on section 19 and the absence of any evidence directed to the issues raised in that section.[76]
[76] Transcript of Proceedings 17 September 2015 page 24, line 5
118.Mr McCarthy concurred with the propositions by Mr Walker SC to the effect that:
(a)the task of the Tribunal required it to be satisfied that Mr Mason had ‘reasonably’ formed the view required under section 191(1). This required the Tribunal to consider whether there were any vitiating factors including a reasonable evidential basis for the belief or any failure to make reasonable inquiries;[77] and
(b)section 191(2) introduced a merits review process.[78]
[77] Transcript of Proceedings 17 September 2015 page 33, line 10
[78] Transcript of Proceedings 17 September 2015 page 32, line 20
119.Mr McCarthy contended that Mr Mason’s belief that a contravention of the Act or Regulation had occurred was justified by:
(a)the observed non-compliance with the Acrow manual in relation to the diagonal bracing which “did not comply with the manufacturer’s instructions as he understood them”;[79]
(b)the observed non-compliance with the Australian Standards by reason of the above factors;
(c)the existence of the polymer cladding with its capacity for adding wind load; and
(d)the resistance encountered from Rovera to making the changes when the matter was raised on site.[80]
[79] Transcript of Proceedings 17 September 2015 page 34, line 5
[80] Transcript of Proceedings 17 September 2015 page 34, lines 5-36
120.There followed a lengthy discourse between Mr McCarthy, the Tribunal and Mr Walker SC on the issue of precisely what contravention of the Act or Regulation Mr Mason had relied upon. Mr McCarthy eventually rightly conceded that the only contravention relied upon was that of regulation 225(4).[81]
[81] Transcript of Proceedings 17 September 2015 page 42, line 5 – page 44, line 15
121.At other points Mr McCarthy appeared to rightly concede that nothing in the Act or Regulation elevated the manufacturer’s manual or the Australian Standards to more than a relevant consideration to which regard must be had – “there has never been any quarrel with the fact that there is no statutory requirement or strict requirement to follow manufacturer’s instructions.”[82]
[82] Transcript of Proceedings 17 September 2015 page 43, line 30
122.Mr McCarthy conceded that not all non-compliance with provisions of the Act or Regulation necessarily raised health and safety issues; and that health and safety issues came in matters of degree.[83] It was put to him by the Tribunal that it was a non sequitur on Mr Mason’s part to equate a non-compliance (assuming such existed) with a statutory provision as necessarily implying a health and safety issue, to which Mr McCarthy responded:
I follow that, but that is ultimately the question of fact that is left for the Tribunal…the point I’m driving at is if the Tribunal comes to the view that notwithstanding all those departures there still wasn’t a risk to health and safety then the notice should fall away with the benefit of hindsight. [84]
[83] Transcript of Proceedings 17 September 2015 page 48, line 5
[84] Transcript of Proceedings 17 September 2015 page 48, line 17
123.It was put to Mr McCarthy that reliance upon regulation 225(4) brought with it the consequence that the respondent had to show a belief in Mr Mason that any observed contravention on site went to the issue of health and safety. It was insufficient to simply point to a contravention per se including a contravention of manufacturer’s instructions or of the Australian Standards if there was no evidence that those alleged contraventions represented a risk to health and safety.[85]
[85] Transcript of Proceedings 17 September 2015 page 55, line 35-page 61, line 40
124.At the end of the discourse Mr McCarthy conceded that the risk to health and safety arising from the contravention nominated by Mr Mason was an inference drawn from the fact of the alleged contravention alone. He argued that the Australian Standards are of such authority that the non-compliance must point to a risk to health and safety.[86] The Tribunal expressed the view that this was a ‘long bow’[87] to which Mr McCarthy responded “it is a question of degree.”[88]
[86] Transcript of Proceedings 17 September 2015 page 61 35; page 86, line 40
[87] Transcript of Proceedings 17 September 2015 page 62, line 25
[88] Transcript of Proceedings 17 September 2015 page 62, line 30
125.On 21 September 2015 the applicant filed unsolicited further submissions on regulation 225(4). The applicant expressed concerns that the Tribunal may have misunderstood the nature and role of regulation 225(4). The concern was said to arise from the Tribunal’s question concerning whether any operation of regulation 225(4) was dependent on any ‘notice’ being served on a person. This issue has been addressed above. The short answer is that there is no explicit requirement for a notice under regulation 225(4) but it is implicit. Some form of notice must materialize from the inspection in order to trigger the rectification or repairs that regulation 225(4) speaks of. The person in control of the site cannot be expected to read the inspector’s mind. The applicant argued more fully that the outcome of the ‘inspection’ referred to in regulation 225(4) is the triggering mechanism and in particular there would need to be a finding indicating a risk to health and safety for this trigger to apply and not a mere non-compliance with the AS or even a breach of a provision of the Act or Regulation that does not present a risk to health and safety.
126.The applicant again contended that regulation 225(4) was relevant only to the ordering of repairs, alterations and additions and was not capable of being breached until such an order was made and not complied with. It was contended by the applicant that these were not the facts of this case because Rovera had immediately complied with the notice.
127.The respondent did not object to the unsolicited further submissions from the applicant. The respondent sought to file its own further submissions on evidence. The applicant objected to these further submissions in a letter of 30 October 2015 to the Registrar. The Tribunal considered and dismissed the objections in short written reasons.
128.The respondent’s further submissions summarised the evidence relied upon by the respondent in support of a finding that the scaffolding as erected did in fact represent a risk to health and safety. The evidence covered the grounds referred to above, namely non-compliance with the Acrow manual, non-compliance with the Australian Standards and the presence of the polymer mesh.
129.The respondent criticised the evidence of Mr Bodsworth and in particular his ‘holistic approach’ to the adequacy of the scaffolding. The respondent described the willingness of Mr Bodsworth to depart from compliance with the Australian Standards as itself being a risk to health and safety. The respondent noted that there had been no certified alternative design as envisaged by the Australian Standards by anyone including Mr Stodulka. In the absence of any such certification, the respondent contended that the scaffolding should have complied with the Australian Standards.
Questions from the Tribunal
130.At the close of the hearings the Tribunal sought further detail from the parties on salient points of their arguments including the existence or otherwise of Rovera manufacturer’s instructions; the fixing methods used for the containment sheeting; and the relative strengths of the Rovera and Acrow scaffold members.
Manufacturer’s instructions
131.Reference is made in the legislation and in the Australian Standards to the need to have regard to information and instructions provided by the manufacturer or supplier of plant or equipment on the site. As previously noted, the applicant contended and the Tribunal accepts that the Acrow Cuplok manual was not issued by Rovera and is not applicable to the Rovera Cuplok scaffolding system. Mr Mason gave evidence that he was familiar with the Acrow manual. Mr Bodsworth said he had seen such a guide for the Rovera system but gave no detail of it. Mr Savage made no reference to such a document.
132.The Tribunal asked Mr Walker SC “are there instructions for the Rovera scaffolding” and Mr Walker SC replied “there are none in evidence so I haven’t brought the matter further.” At the resumed hearing in September 2015, Mr Walker SC conceded of the Acrow Cuplok and Rovera Cuplok systems that “the locking system is the same. I don’t think there’s any doubt that you put the cup down, turn it, you give it a belt with a hammer and it locks in”.[89] In response to the Tribunal’s request for information about the existence of a Rovera manual, Rovera replied that there was no “dedicated set of instructions, the sort of Rovera equivalent of the Acrow document” but that Rovera had “scaffolding notes which refer to the assembly of the product.” These notes were later provided to the Tribunal.[90]
[89] Transcript of Proceedings 17 September 2015 page 19, line 12
[90] Transcript of Proceedings 29 April 2016 page 19, line 16
133.A two-page document ‘Scaffolding Notes – Gungahlin Commercial Offices’ was tabled on 29 April 2016. The scaffolding notes state:
all erection work is to be carried out in a safe, tradesmanlike manner and be in accordance with this drawing, AS 1576, AS 4576, local authority requirements and workplace health and safety regulations…unless noted otherwise…the distance between face bracing panels not to exceed six bays…the scaffold is to be tied to suitable locations on the supporting structure at each end and every 2nd standard horizontally (single standard ties) while vertical spacings are not to exceed 4m…if shadecloth is used then reduce horizontal tie distance to 2.4 metres max.
The spacing of the standards is given as 2.4 metres. The Tribunal notes at this point that the Rovera scaffolding notes require compliance with the relevant Australian Standards, which include the need for face bracing to run full height to the top working level of the scaffold.
Containment sheeting
134.There was evidence from Mr Mason that he would not have issued the improvement notice had containment sheeting not been attached to the scaffolding. The Tribunal sought further information as to the methods used on the site to fix the containment sheeting and responses from the parties were entered into evidence on 29 April 2016. Mr Mason said in evidence that “some parts of the scaffolding were tied up with cable ties.” When he was asked “were the clips designed to enable the cladding to detach from the scaffolding in the event of a high wind event”, Mr Mason said “no, I don’t believe so”. Replying to the Tribunal’s request for further information, the Tribunal was told that:
Mr Mason is unable to recall the fixing method used on the scaffolding on 4 November 2014. The respondent is therefore unable to provide the Tribunal with any further evidence as to how the polymer sheeting was affixed to the scaffolding.[91]
[91] Respondents answers to additional Tribunal questions dated 19 February 2016
135.Mr Bodsworth’s evidence was that containment sheeting is normally held in place by clips which release and allow “the wind to dissipate”. Asked “did you see these clips actually used on the mesh at the Lend Lease site”, Mr Bodsworth said “yes” but gave no further detail. Asked about possible wind loads because of the mesh, Mr Bodsworth said that, in his opinion, the role of the diagonal bracing was “minimal” if the wind was coming against the face of the scaffold and “minimal to nil” if the wind was coming along the face of the building.[92] In response to the later questions from the Tribunal, Rovera supplied no photographic or documentary evidence but stated “Mr Bodsworth is correct; the Unimesh was fixed to the scaffolding using a general purpose clip called a “Kwik as Klip”…designed to fail in high winds thus complying with section 8.10 of AS4576.”[93]
The strength of the Rovera Cuplok scaffolding
[92] Transcript of Proceedings 30 June 2015 page 120, lines 20-22; page 132, line 40
[93] Applicant’s response to Tribunal question 4
136.As noted previously, the Tribunal found Mr Stodulka’s evidence as to the size of the structural components to be confusing. The Tribunal therefore asked again “in what way(s) is the Rovera Cuplok system different from the Acrow cuplok system”. The applicant provided a written reply confirming the earlier statement of Mr Savage that the Acrow system is galvanised and the Rovera system is not. Rovera then conceded that “the Cuploking system itself is the same on both systems.” Rovera also wrote that “the (Acrow) galvanised scaffolding standards are 3.2mm wall thickness and use the galvanised finish to attain the 4mm wall thickness, thus complying with the Australian Standards. The Rovera system is stronger because it is made of thicker steel.” Later evidence shows these statements to be incorrect and misleading.
The issues for the Tribunal
137.The issues for the Tribunal are:
(a)What were the processes engaged in and facts known to Mr Mason when he formed the view for the purposes of section 191(1) that there had been a contravention of the Act or Regulation.
(b)Were there any factors in the processes or assumed facts that constitute an error of law such as to vitiate the reasonableness of the formed belief, including any misapprehension of the relevance of regulation 225(4), the Acrow manual and the Australian Standards?
(c)If the belief formed under section 191(1) is valid, then what is the proper construction of section 191(2). In particular does it import a traditional merits review or only some more restricted review process. Is it open to the Tribunal to have regard to the facts as they existed at the time the notice was issued irrespective of whether Mr Mason was aware of those facts?
(d)What is the proper construction of regulation 225(4); is it the kind of provision that is capable of giving rise to a contravention under section 191(1) and if so, was there in fact any contravention of regulation 225(4)?
(e)Depending on the answers to (c) and (d) immediately above, does the Tribunal believe that the issue of the improvement notice was justified on the facts to which regard may be had?
The section 191(1) belief
138.The reasonableness of the belief required by section 191(1) must be judged objectively. It need be only a reasonable belief and not necessarily the belief that the Tribunal would have formed on the same evidence. Reasonable minds can differ on these things.
139.The applicant argued that Mr Mason’s belief was not ‘reasonable’ because he acted without making enquiries of the builder or Rovera as to the detail of the scaffolding. The Tribunal agrees that Mr Mason could have made further enquires with Rovera before forming any view under section 191(1) and issuing the improvement notice. The Tribunal was informed that the reason that Mr Mason did not do so was the original resistance encountered on site when he raised the non-compliance matter with Mr Perrott. Whilst the Tribunal may not have reacted in the same manner as Mr Mason did, we cannot say that it was an unreasonable approach on his part.
140.Had Mr Mason been aware that the system used was not an Acrow system and that Rovera was relying on the engineering plans approved by Mr Stodulka, he would probably still have formed the view that a contravention of the Australian Standards had occurred and issued the notice. The Tribunal has come to this view based on the importance that Mr Mason attached to the Acrow manual and to the Standards. Putting to one side the statutory issues, this view was open to Mr Mason on the evidence and the Tribunal does not find that it was an unreasonable position for him to have adopted.[94]
[94] Transcript of Proceedings 17 September 2015 page 39, line 25; page 78, line 20
141.One concern the Tribunal has for the purpose of section 191(1) is with Mr Mason’s assumption that a non-compliance with the Australian Standards or the Acrow manual necessarily gives rise to a risk to health and safety within the meaning of regulation 225(4). In the Tribunal’s view this is a non sequitur for the reason that a contravention may be minor and may be more than compensated by other safety features.
142.Section 191(1) required Mr Mason to form a reasonable belief that a contravention had occurred. To form that view he had to focus on one or more potential contraventions of the Act or Regulations and be satisfied that they had in fact occurred. He specifically focused on the one potential contravention, namely that of regulation 225(4); without specifically having indicated whether the non-compliances in question represented a risk to health and safety for the purposes of regulation 225(4).
143.The respondent argued that Mr Mason should be taken to have formed a negative view on the health and safety risk for the purposes of regulation 225(4) in that the risk to health and safety followed axiomatically from a non-compliance with the Acrow manual or from the Australian Standards. If Mr Mason did in fact think in this way, then his view was not a reasonable one. The Tribunal is however prepared to accept that Mr Mason formed his belief that there was a risk to health and safety to workers on the site as the result of seeing an incomplete scaffold and the obvious absence of bracing in several parts of the scaffold structure.
144.It is not sufficient that there be just any level of risk to health and safety at all. Such would be the case for the most perfectly engineered and complying structure. The Tribunal pressed the parties on the issue of the degree of risk envisaged by regulation 225(4) but received no helpful response. It would no doubt be possible to apply the usual range of adjectives such as ‘substantial’ or ‘material’ etc but this does not take the matter far. The Tribunal has adopted a comparative test and asked itself the question of whether the structure as built is more or less safe than if the structure had complied with the Australian Standards. The applicant’s witnesses testified that the structure was as safe as one that complied with the Australian Standards or more so due to the over engineering features. The Tribunal does not accept that these over engineering features existed and so does not accept the evidence of these witnesses on this point. The Tribunal is of the view that the applicant has not provided evidence that the scaffolding at the time of Mr Mason’s visit was as safe as it might have been had it complied with the Australian Standards. Accordingly, it was reasonable for Mr Mason to have a belief that the structure presented a risk to health and safety at the time the notice issued. Because of the height of the scaffolding, the Tribunal also considers it reasonable for Mr Mason to believe that this risk was considerable.
145.The Tribunal accepts that the WHS Act does not require strict compliance with Australian Standards AS 1576 and AS 4576. However, the Tribunal shares the concern of the respondent that Mr Bodsworth, the Regional Environmental Health and Safety Manager for Lend Lease, should take a view that “departure from Australian Standards is acceptable by taking a ‘holistic approach’ to whether the scaffold is safe.” Mr Bodsworth agreed he was required to implement the guidelines issued by Lend Lease and that these guidelines mandated compliance with the Australian Standards on Lend Lease building sites. The respondent has submitted that the attitude of Mr Bodsworth is unacceptable and is itself a risk to the health and safety of workers on site. The Tribunal notes the observation of the respondent that “if the scaffold had failed, as Inspector Mason perceived could occur in the event of high winds, it is unlikely that anyone would defend non-compliant scaffold on the basis of a “holistic approach.”[95]
[95] Transcript of Proceedings 30 June 2015 page 146, line 10; respondents summary of argument at [16]
146.The Tribunal accepts that Mr Mason personally held the view that the non-compliances with the Australian Standards, the Acrow manual and the presence of the polymer sheeting represented a risk to health and safety.
Conclusion
147.In summary, on the balance of probabilities the Tribunal is satisfied that:
(a)the scaffolding on site did not comply with the Australian Standards or the Acrow manual;
(b)there was no compensating over engineering of the scaffolding to make up for the above non-compliances;
(c)Mr Mason did not conclude that the non-compliance with the Australian Standards and Acrow manual alone raised a risk to public health and safety;
(d)Mr Mason concluded that the above non-compliances coupled with the presence of the polymer sheeting did raise an issue of public health and safety;
(e)when Mr Mason issued the improvement notice he deliberately nominated a breach of regulation 225(4) that related expressly to scaffolding where there is a risk to health and safety;
(f)he had reasonable grounds for believing that the risk to health and safety existed; and
(g)when Mr Mason issued the improvement notice nominating a breach of regulation 225(4) he had not identified any other alleged breach of the Act or Regulations and did not purport to rely upon any other alleged breach.
148.Section 191 expressly requires a breach of the Act or Regulations. If a perceived risk to public health and safety in the scaffolding under regulation 225(4) is of itself also a breach of the Act or Regulation, then the improvement notice was properly issued. If the perceived risk to health and safety is not of itself a breach of the Act or Regulation, then the improvement notice was not properly issued.
149.Mr McCarthy conceded that the non-compliance with the Australian Standards and Acrow manual were not of themselves breaches of any provision of the Act or Regulation. So much is clear on the face of the legislation. Therefore even if these non-compliances formed the basis for Mr Mason’s belief that there was risk to public health and safety under regulation 225(4), they cannot provide the basis for the issue of an improvement notice. These non-compliances could have provided the basis for a direction, order or indication (however described) for rectification under regulation 225(4), but this is not what Mr Mason chose to do in the present case.
150.All that is left to the respondent is the argument that the mere fact of the health and safety concern arising under regulation 225(4) (without the issue of any prior notice or indication or direction under that regulation) is enough to constitute a breach of a provision of the Act or Regulation so as to justify the improvement notice. This is plainly not so. It may be that if an order, direction or indication had been issued under regulation 225(4) and the applicant had not complied with that direction, then a relevant breach of the Act would have occurred which may have justified an improvement notice. But again these are not the facts of this case.
151.The above difficulties arise from trying to conflate two different statutory regimes into the one. It does not work.
152.Mr Mason should have adopted one of two separate courses of action. He should have:
(a)issued a direction, order or indication under regulation 225(4) for rectification work; or
(b)identified a breach of the Act or Regulations (which is not the same as a breach of the Australian Standards or the Acrow manual) and issued an improvement notice based on the identified breach.
He did neither but rather purported to conflate the two separate processes.
153.For these reasons the Tribunal is of the view that the improvement notice was not properly issued under section 191(1) and the issue of section 19(2) does not arise.
154.If however the Tribunal is wrong in its construction of the interaction between section 191 and regulation 225(4) such that the notice was validly issued, then the Tribunal would have found for the purposes of section 191(2) that the notice was reasonably issued for the reasons given above.
155.Section 68(3) of the ACAT Act sets out the orders the Tribunal is required to make when reviewing a decision. In the circumstances of this matter the decision under review 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
REASONS FOR DECISION OF SENIOR MEMBER PEGRUM
156.The Work Health and Safety Act 2011 provides that the main object of the Act is “to secure the health and safety of workers and workplaces”. In furthering this Object, “regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”[96]
[96] Section 3 of the WHS Act
157.Section 191 of the Work Health and Safety Act 2011 “applies if an inspector reasonably believes that a person…is contravening a provision of the Act.” Section 16 of the Legislation Act 2001 defines the term ‘provision’ as “any words or anything else that forms part of the Act or instrument.” The object of the Act forms part of the Act and is therefore a provision of the Act.
158.The Tribunal has concluded at paragraph 144 above that it was reasonable for Mr Mason to have a belief that the structure presented a risk to health and safety at the time the notice issued. The Tribunal has also concluded that, because of the height of the scaffolding and the presence of the containment sheeting, it was reasonable for Mr Mason to believe that this risk was considerable.
159.The existence of this reasonable belief that a person was contravening the object of the Act meets the requirement of section 191 for the issue of an improvement notice.
160.Regulation 225(4) applies “if an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety” and the regulation then requires certain actions by “the person with management or control of the scaffold” who must ensure that “any necessary repairs, alterations and additions are made and carried out and…the scaffold and its supporting structure are inspected again by a competent person before use of the scaffold is resumed”. Mr Mason’s inspection indicated to him that the scaffold created a risk to health and safety. Regulation 225(4) does not provide for and does not require a notice or direction in order to be valid.
161.The applicant contends that Mr Mason failed to make proper enquiries before forming his belief that a risk to health and safety existed on the site. There is no requirement in the Act or the Regulation for Mr Mason to make any enquiries. Moreover, Mr Mason received no assurances that his concerns would be investigated or that the defects he had identified on site would be remedied.
162.It is clear from the evidence that discussions on the site broke down. Section 191 applies “if an inspector reasonably believes that a person…has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.” Mr Mason’s reasonable belief that the deficiencies in the scaffolding presented a risk to health and safety and that it was likely that this risk would “continue or be repeated” satisfies the requirements of section 191 for the issue of an improvement notice.
163.The respondent’s summary of argument at [38] contended that it is a question for the Tribunal to assess “whether there was an appreciable risk to health and safety and whether the issue of the notice was a reasonable means of addressing that risk as perceived at that time”. I am of the view that Mr Mason had a reasonable belief that there was an appreciable risk to health and safety, that the issue of the improvement notice was a reasonable means of addressing that risk and that this action was consistent with the Object of the Act “to secure the health and safety of workers and workplaces.”
164.I am of the view that Mr Mason acted in accordance with his responsibilities as an inspector appointed under the Work Health and Safety Act 2011 “to require compliance with this Act through the issuing of notices.”[97]
[97] see section 160(d) of the WHS Act
165.For these reasons I am of the view that the decision under review should be confirmed.
………………………………..
Senior Member R Pegrum
HEARING DETAILS
FILE NUMBER:
AT 110/2014
PARTIES, APPLICANT:
Rovera Scaffolding (ACT) Pty Ltd
PARTIES, RESPONDENT:
Director-General of The Chief Minister, Treasury & Economic Development Directorate
COUNSEL APPEARING, APPLICANT
Mr P Walker SC
COUNSEL APPEARING, RESPONDENT
Mr G McCarthy, Mr R Clynes
SOLICITORS FOR APPLICANT
O’Connor Harris & Co Solicitors
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Senior Member A Anforth, Senior Member R Pegrum
DATES OF HEARING:
29 June 2015, 30 June 2015, 17 September 2015, 29 April 2016
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