Technip Oceania Pty Ltd v National Offshore Petroleum Safety and Environmental Management Authority
[2016] FWC 495
•29 January 2016
[2016] FWC 495
DECISION
| Offshore Petroleum and Greenhouse Gas Storage Act 2006 |
| Rule 58 Application to review other decision |
| Technip Oceania Pty Ltd |
| v |
National Offshore Petroleum Safety and Environmental Management
Authority T/A NOPSEMA
(C2015/8245)
| VICE PRESIDENT WATSON | MELBOURNE, 29 JANUARY 2016 |
Application for review of decision of Inspector of National Offshore Petroleum Safety and
Environmental Management Authority to issue Prohibition Notice – Immediate threat to
health and safety – Whether reasonable grounds for satisfaction – Whether Prohibition
Notice reasonably necessary – Offshore Petroleum Greenhouse Gas Storage Act 2006,
Schedule 3, clauses 77 and 81 – Fair Work Commission Rules 2013, rule 58.
Introduction
[1] This decision concerns an application made to the Fair Work Commission (the
Commission) under Rule 58 of the Fair Work Commission Rules 2013 (the FWC Rules) and
the terms of Schedule 3 of the Offshore Petroleum Greenhouse Gas Storage Act 2006 (the
OPGGS Act). The application was made by Technip Oceania Pty Ltd (Technip) in relation to
the decision of an Inspector of the National Offshore Petroleum Safety and Environmental
Management Authority T/A NOPSEMA (NOPSEMA) to issue a prohibition notice (PN 614).
Technip disputes the decision of the Inspector to issue the prohibition notice and asks that the
Commission revoke the decision of the Inspector to issue the notice.
[2] The matter was heard by the Commission in Perth on 19 January 2016. Mr J. Thomson
SC, with Ms F. Clarke, appeared on behalf of Technip and Mr P. Macliver, with Ms S. Hillier,
appeared on behalf of NOPSEMA. Evidence was given by the following persons:
Mr A. Seguela – Subsea Construction Manager
Mr S. Kenwery – Health Safety Environment Manager
Mr N. Barnes – Dive Superintendent
Mr G. Guyan – Head of Division (Safety and Integrity), NOPSEMA.
Relevant Legislation
[3] Clause 77(1) of Schedule 3 to the OPGGS Act provides:
[2016] FWC 495
“77 OHS inspections—OHS prohibition notices (issue)
When a notice may be issued
(1) A NOPSEMA inspector may issue a notice (an OHS prohibition notice), in
writing, under this clause if, in conducting an OHS inspection in relation to a
facility, the inspector is satisfied on reasonable grounds that:
(a) either:
(i) an activity is occurring at the facility that involves an immediate
threat to the health or safety of a person; or
ii) an activity may occur at the facility that, if it occurred, would
involve an immediate threat to the health or safety of a person; and
(b) it is reasonably necessary to issue the notice in order to remove the threat.
Note: The notice will be published on NOPSEMA’s website (see clause 80AA).”
[4] Rule 58 of the FWC Rules provides that the Commission can review a decision made
by a decision maker, other than the Commission or a person exercising a delegation from the
President or the General Manager, if legislation confers a jurisdiction on the Commission to
do so. When read in conjunction with clause 81 (6) of Schedule 3 of the OPGGS Act and the
definition of “reviewing authority” in clause 3 of Schedule 3 of the OPGGS Act, the
Commission is the reviewing authority for appeals concerning occupational health and safety
decisions. Clause 81 of the OPGGS Act provides:
“81 Appeals concerning OHS inspections etc.—associated rules and procedure
Appeal does not affect the operation of a decision
(3) Subject to this clause, the making of an appeal under this Division against a decision does not affect the operation of the decision or prevent the taking of action to
implement the decision, except to the extent that the reviewing authority makes an
order to the contrary.
Suspension of OHS improvement notices
(4) If the decision appealed against is a decision to which item 8 of the table in subclause 80A(1) applies, the operation of the decision is suspended pending
determination of the appeal, except to the extent that the reviewing authority makes an
order to the contrary.
Note: Item 8 of the table in subclause 80A(1) applies to a decision to issue an OHS improvement notice, or to exercise a corresponding power under section 602E.
(5) If the decision appealed against is a decision of a NOPSEMA inspector, under
clause 39, to confirm or vary a provisional OHS improvement notice whose operation
[2016] FWC 495
has been suspended pending the inspection of the matter to which the notice relates,
the operation of the notice is further suspended pending determination of the appeal,
except to the extent that the reviewing authority makes an order to the contrary.
Reviewing authority’s decision on appeal
(6) The reviewing authority may: (a) affirm or revoke the decision appealed against under this Division; and
(b) ifit revokes the decision—substitute such other decision as it thinks appropriate.
(7) If the decision is: (a) varied; or (b) revoked; or (c) revoked with the substitution of another decision; the decision is taken to have effect, and always to have had effect, accordingly.
Inspector’s duty to return plant etc. to the workplace
(8) If: (a) the decision appealed against is a decision under clause75 to take possession of plant, a substance or a thing at a workplace; and
(b) the decision is not affirmed;
the inspector who made the decision must ensure that, to the extent that the decision is
not affirmed, the plant, substance or thing is returned to the workplace as soon as
practicable.
[5] Pursuant to these provisions, Technip seeks an order of the Commission to revoke the
decision of the NOPSEMA Inspector to issue PN 614.
Background
[6] Technip operates the Wellservicer facility (a diving support vessel) for the Wheatstone
Subsea Installation Project. It carries out saturation diving activities at the Wheatstone
Processing Platform which is presently being commissioned. Pursuant to clause 9 of Schedule
3 to the OPGGS Act, Technip must take all reasonably practicable steps to ensure that the
facility and all work and other activities carried out at the facility are safe and without risk to
the health of any person at or near the facility.
[7] Regulation 1.4 of the Offshore Petroleum and Greenhouse Gas Storage (Safety)
Regulations 2009 (the OPGGSS Regulations) set out the objectives of the OPGGSS
[2016] FWC 495
Regulations. The objectives include ensuring that all diving to which the Act relates is carried
out in Commonwealth waters only in accordance with a diving safety management system
that has been accepted by NOPSEMA. It also provides that a further object of the Regulations
is to ensure that facilities are designed, constructed, installed, operated, modified and
decommissioned in Commonwealth waters only in accordance with safety cases that have
been accepted by NOPSEMA. Technip’s diving safety management system was accepted by
NOPSEMA on 11 August 2014 and its safety case for the Wellservicer facility was accepted
on 7 October 2015.
[8] The Wellservicer is described in the safety case as follows:
“6.1 Overview The Wellservicer is a DP Class 3 capable multi-purpose vessel, owned by Technip
Marine and operated by TPO. The vessel’s principal features are presented in Table 1.
A photograph of the vessel is provided in Figure 1: Wellservicer Vessel.
Table 1: Principal Features
| Vessel Name | Wellservicer |
| Year delivered | 1989 |
| Builder (and place) | North East Shipbuilders Ltd, Sutherland, UK |
| Port of Registry | Aberdeen |
| Flag | United Kingdom |
| Call Sign | MGGL8 |
| International Maritime Organization (IMO) | 8324579 |
| Identification Number | |
| Accommodation | 138 berths |
| Length Overall | 111.4m |
| Breadth Moulded | 22.5m |
| Depth Moulded | 11m |
| Draft (max.) | 7.26m |
| Deadweight (max. draft) | 4,626t |
| Gross Registered Tonnage | 9,158t |
6.2 Vessel Capabilities The Wellservicer is capable of performing a variety of offshore marine activities,
including the following:
Saturation Dive Support;
Subsea Construction;
Lifts up to 200Te;
Helicopter support; and
Post-installation survey basic construction activities (e.g. rigging connection/disconnection) using Remote Operation Vehicle (ROVs).”
[2016] FWC 495
[9] Technip’s safety case provides that in the event of an emergency on the Wellservicer
that requires hyperbaric evacuation, the base case is that once the divers are safely secured in
the Self Propelled Hyperbaric Life Boat (SPHL) stored on board the Wellservicer, the SPHL
will be launched and joined by a Hyperbaric Support Rescue Vessel that will be located
within two hours of diving operations at all times. The safety case describes the SPHL as
follows:
“13.6.5 Hyperbaric Lifeboat (SPHL)
The vessel is equipped with 1 x 22-persons (18 divers + 4 crew) davit launched
Hyperbaric lifeboat located on Deck “B” level starboard side and embarkation area
located on the A-deck. The crew is to be located in a non-pressurised cabin with the
responsibility to steer the lifeboat and provide life support services to the divers.
The boat is equipment with a water mist system using storage & activation cylinders
activated from the cabin of the SPHL.
Specifications for the hyperbaric lifeboat are as follows:
• Type: Oceanwide SaS, SPHL 1050/18, totally closed type;
• Size (LxBxH): 10.50 x 3.35 x 3.6m;
• Weight (empty): 16,100kg;
• Weight (full): 18,800kg;
• Endurance: 72 hours life support;
• Engine: Steyer Motors, Type: M0144M38, diesel engine;
• Hyperbaric chamber: Divex Ltd, Type: SY117;
• Hull material: Fire retardant Glassfiber Reinforced Polyester (GRP).
The Lifeboat is launched using a davit system, with the following specifications:
• Make/model: Schat-Harding Davit System, SPLCH20;
• Safe Working Load (SWL): 18,000kg;
• Max List I Trim: 20° heel/10° trim;
• Dead ship operation: Yes- Nitrogen accumulator.
SPHL launch is also possible via the electrical remote control panel and directional
control valve located within the power pack room.
[2016] FWC 495
The operational requirements for work in Australian waters is likely to be 4 teams of 3
divers with 1 x 3 man team in decompression = a total of 15 man. Two Standby divers
will also be available as deck divers (not in chamber).”
[10] If the SPHL is launched the Master of the Hyperbaric Support Rescue Vessel has the
discretion to choose between three rescue options, dependent on weather conditions. The
recovery option is a recovery lift of the SPHL onto the deck of the Rescue Vessel before
transiting to the Hyperbaric Rescue Facility in Dampier. If this recovery option is seen as
posing an unacceptable risk to the SPHL, the Master may decide to use either the towing
option or the escorting option. In the towing option the SPHL is attached to the Rescue Vessel
and towed to a safe haven or port, while in the escorting option the Rescue Vessel escorts the
SPHL to a safe haven or port.
[11] The Wheatstone Subsea Installation Project has two designated Rescue Vessels:
the North Sea Atlantic – a construction vessel which has the capacity to carry out all
three rescue options; and
the Mermaid Supporter – an offshore support vessel equipped to provide the
escorting and towing options.
[12] NOPSEMA issued PN 614 to Technip on 1 December 2015. The prohibition notice
provides:
“To: Technip Oceania Pty Ltd
In conducting an OHS inspection in relation to the Wellservicer facility, I Allan
Barnes, a NOPSEMA inspector appointed under section 602 of the Act, am satisfied
on reasonable grounds that an activity may occur at the facility that, if it occurred,
would involve an immediate threat to the health or safety of a person.
I am satisfied that it is reasonably necessary to issue a prohibition notice to the
Technip Oceania Pty Ltd operator of the Wellservicer facility in order to remove the
threat.
I THEREFORE DIRECT Technip Oceania Pty Ltd to ensure that the following
activity is not conducted:
(a) at this workplace or part of workplace:
Wellservicer
(b) using this plant or substance:
Saturation diving system in the absence of appropriate hyperbaric boat rescue
capability at the location
The activity that may cause the threat to health or safety is:
Saturation diving without hyperbaric boat rescue capability as described in the safety
case in force for the Wellservicer facility.
[2016] FWC 495
The reason why the activity may cause the threat to health or safety is:
Saturation diving without hyperbaric boat rescue capability at the location would pose
an immediate threat to safety of the saturation divers in an emergency situation.
* Action that may be taken that will be adequate to remove the threat to health or
safety is:
1. Stop saturation diving and decompress divers prior to the North Sea Atlantic
departing the location of the Wellservicer facility, or
2. Have another vessel on location of at least equal capability with respect to
hyperbaric boat rescue as the North Sea Atlantic as described in the safety case
in force for the Wellservicer facility.”
[13] The prohibition notice was issued shortly after an Inspector was informed that Technip
planned to conduct an interim mobilisation of the North Sea Atlantic, which would result in
the vessel departing from the close vicinity of the Wellservicer facility for a period of 48
hours. Technip proposed that during this 48 hour period, the Mermaid Supporter would
provide rescue support to the SPHL using the two options available to it if such assistance
was necessary. The basis for the Inspector’s decision to issue PN 614 was that despite there
being three rescue options available in the safety case the unavailability of the recovery option
would constitute an activity that, if it occurred, might involve an immediate threat to the
safety of saturation divers.
[14] Since that time the plans for the vessels has altered. It is now proposed that the
Wellservicer will travel to Dampier, with divers aboard, on approximately 31 January 2016.
The effect of the prohibition notice is that the North Sea Atlantic will need to accompany the
Wellservicer on that voyage.
Grounds for Revocation of the Prohibition Notice
[15] Technip makes this application on two grounds. The first ground is an allegation of
legal error. The second ground challenges the reasonableness of the grounds of the decision to
issue the prohibition notice. I will elaborate on these grounds and the contentions of the
parties before considering them.
[16] In relation to the first ground, Technip submits that PN 614 was not issued in
accordance with clause 77(1)(a)(ii) of Schedule 3 of the OPGGS Act because it applies
different criteria to that contained in clause 77(1). It contends that the prohibition notice fails
to identify an activity that if it occurred, “would” involve an immediate threat to the health or
safety of a person. Technip notes that the substantive part of the prohibition notice identifies
that saturation diving without hyperbaric boat rescue capability as described in the safety case
in force for the Wellservicer facility “may cause” the threat to health and safety. This has been
referred to by the parties as the legal error ground.
[17] NOPSEMA submits that when the “may cause” statement is read in conjunction with
the remainder of PN 614, it is apparent that the Inspector properly applied the legislative
criteria contained in Clause 77(1)(a)(ii). It further contends that the fact that wording in the
[2016] FWC 495
prohibition notice differs from the wording contained in the OPGGS Act does not
demonstrate any legal error.
[18] In relation to the second ground, Technip submits that PN 614 was not validly issued
because, upon applying the correct legislative criteria, the NOPSEMA Inspector could not
have been satisfied on reasonable grounds of the relevant legislative criteria at the time of the
prohibition notice being issued. It contends that there were no factual grounds upon which the
NOPSEMA Inspector could be reasonably satisfied that the activity of saturation diving
without hyperbaric boat rescue capability as described in the safety case, might occur at the
Wellservicer facility and that, if it occurred, this “would involve” an immediate threat to the
health or safety of a person.
[19] Technip submits that the absence of the recovery option does not involve an
immediate threat to the safety of the saturation divers because both the towing option and the
escorting option remain available to be undertaken by the Mermaid Supporter if required. It
further contends that the SPHL has 72 hours of life support endurance, and that this is more
than sufficient to cater for both the towing and escorting options. In the alternative, Technip
notes that it remains open to it to immediately direct the North Sea Atlantic to cease its
interim mobilisation in order to join and support the SPHL should it be necessary.
[20] Technip also contends that, in any event, the recovery option is not its preferred rescue
option as it is heavily dependent on a favourable sea state. This sea state could not be
guaranteed for more than 10% of the saturation diving period, and it is regarded by Technip’s
Hazard Identification Study as the option that imposes more risk to the divers and the SPHL
than the other options.
[21] Technip notes that the general terms of the safety case contemplated the preparation of
a more detailed hyperbaric evacuation plan, which addressed the situation of the Wellservicer
becoming separated from the North Sea Atlantic due to the vessel needing to return to port for
a short period of time. Technip submits that it has not proposed any conduct which would
depart from the hyperbaric evacuation plan. It notes that the separation of the Wellservicer
from the North Sea Atlantic does not involve any material addition of risk for the safety of
divers undertaking saturation diving. This is because the company has arranged for a
secondary dive support vessel and due to the fact that the recovery option is the least
favourable option available to it given that it can only be used in small set of circumstances.
[22] In relation to this ground, NOPSEMA submits that this submission appears to ignore
that Technip is bound to act in accordance with the safety case that is in force and that it is an
offence not to do so. It notes that a hyperbaric evacuation plan is not required to be submitted
to it or approved by it, and therefore lacks relevance. It further submits that Technip’s
submission that the recovery option is not its preferred rescue option and is the least
favourable one, is in direct contrast to its safety case response note. This response note states
that it is the base case that after the SPHL is launched, it shall be joined by the North Sea
Atlantic that will be in the vicinity at all times of the diving operation and that if weather
conditions are favourable and the recovery option does not pose an unacceptable risk, the
SPHL will be recovered to the North Sea Atlantic.
[23] Technip also further submits that its estimates of the costs that might be incurred by it
in order to remove the immediate threat that NOPSEMA says exists, is disproportionate and
goes beyond its duty to take all reasonably practicable steps to ensure the safety of persons on
[2016] FWC 495
the Wellservicer. This is in light of the two other options available when the recovery option
is not available, and that NOPSEMA is unable to demonstrate immediate threat to safety in
those circumstances. In response to this, NOPSEMA submits that in a case such as this where
there is an immediate threat the issue of cost is irrelevant.
The Reasonableness of the Decision
[24] Technip has mounted a serious challenge to the reasonableness of the basis on which
the Inspector was satisfied that operation of the Wellservicer without the attendance of the
North Sea Atlantic would involve an immediate threat to the health and safety of the divers
operating from the Wellservicer. Satisfaction of certain circumstances involves an element of
subjectivity. The requirement that the satisfaction be based on reasonable grounds requires an
objective assessment of all relevant circumstances.
[25] The starting point in considering the reasonableness of the grounds for prohibiting
separation of the vessels should be the identification of the risk involved. The circumstance
under consideration is an accident or incident involving the Wellservicer whereby it is no
longer safe for the divers in saturation to remain on board the Wellservicer, and therefore
need to be evacuated from the vessel. The established procedure in that eventuality is for
evacuation to occur in the SPHL. It is then necessary to convey the divers to Dampier because
the hyperbaric support facilities aboard the SPHL are exhausted in 72 hours.
[26] Under the scenario proposed by Technip, whereby the Wellservicer or the North Sea
Atlantic travels to Dampier for 48 hours without the other vessel in attendance, two of the
options for conveying the SPHL are available – the tow option and the escort option. If the
North Sea Atlantic, or another similar vessel is nearby, the third option of recovery would be
available if sea conditions were favourable. The evidence before me establishes that
favourable sea conditions occur in that region at approximately 10% of the time in which
saturation diving is to occur. The advantage of the recovery option, to the extent that it may be
necessary, is the ability to provide alternative life support systems from the North Sea
Atlantic if that should be needed.
[27] It may be that if the Wellservicer is damaged, the SPHL is also damaged either
concurrently or when launched. That scenario may require the provision of alternative life
support facilities and/or faster transmission of the divers to Dampier. The circumstances also
include consideration of the distance to Dampier, the prevailing sea conditions, the
availability of other vessels in the vicinity and the ability of the North Sea Atlantic to travel to
meet the distressed vessels. If the worst case scenario occurs, the unavailability or delay of the
recovery option at the time may threaten the lives of the divers on board the SPHL. That may
occur because of the impracticality of recovery due to sea conditions. It may also occur
because the North Sea Atlantic is not in the near vicinity. If the North Sea Atlantic is in the
vicinity, there is no guarantee that the recovery option will be viable. The evidence before me
establishes that there is a very narrow window in which the recovery option is available and it
is also considered to be the most risky option. Technip does not regard it as the most
favourable option. The escort option is regarded as the safest and preferred option.
[28] The next logical step is to evaluate the probability of these various events occurring
concurrently. The evidence before me establishes some of the possible events, such as a
collision of vessels at sea have occurred. However, other events, such as a hyperbaric
evacuation emergency and launch of a SPHL in the context of a project such as the
[2016] FWC 495
Wheatstone project where diving is taking place alongside an offshore platform, have never
occurred in the oil and gas industry globally. Technip led evidence which provided a basis for
calculating the risks involved. Neither the evidence nor the calculations were contradicted by
NOPSEMA. The risk of an event or incident which requires a hyperbaric evacuation of
saturation divers is regarded as being well below 1%. The risk of SPHL operation failure with
divers in saturation is assessed at approximately 0.0024% per day. The separation of vessels is
due to occur for two days. The probability of safe recovery being viable is approximately 10%
of the time. Each of these variables must occur concurrently for a serious threat to arise. In my
view, the evidence establishes that the risks of a threat are extremely low.
[29] The low probability of these events occurring concurrently is an important factor in
assessing risk. Inspector Barnes, who issued the Prohibition Notice did not give evidence
before me. However, Mr Guyan, in his evidence attached little significance to the low
probability of these events occurring. He based his assessment that the prohibition notice was
issued on reasonable grounds on the possibility of the events occurring. I do not consider that
such an approach was reasonable in the circumstances.
[30] It is clear on the evidence that Inspector Barnes and Mr Guyan attach considerable
weight to the wording of the safety case for the diving operations which suggests that the
North Sea Atlantic will always be in the vicinity of the Wellservicer. Technip states that
unforeseen circumstances have changed the practicality of that option. There is a complex
issue as to whether the proposed separation of the vessels for 48 hours will be inconsistent
with the safety case because various other supporting documentation would appear to bear
upon this question. However, I do not consider that the wording of the safety case should be
equated with the notion of an immediate risk to the health and safety of a person. It appears to
me on the evidence that certain operational plans were established, and these were broadly
reflected in the safety case. However it does not logically follow that a change in plan would
necessarily create an unsafe situation. The necessary analysis requires much greater
consideration of the circumstances and the risks involved. It does not appear to me that either
the Inspector, or NOPSEMA, defending the prohibition notice undertook this analysis.
[31] The grounds for contending that the approach by the Inspector were reasonable
include the contention that the requirement of having the recovery option available at all times
is consistent with the industry guideline issued by the International Marine Contractors
Association. NOPSEMA relied upon sections 2.1, 3.1 and 3.2 from those guidelines as a basis
for concluding that the removal of a safety mitigation measure, the North Sea Atlantic,
represents an immediate threat to the divers’ safety. I have reviewed these guidelines. The
most relevant section is clause 2.4.3 which states:
“2.4.3 Transit to Safe Haven A serious issue with hyperbaric evacuation, however, is being able to get the HRU to
the safe haven in a safe and efficient method. This should be as soon as possible and
planning should be based on arrival at the safe haven within 75% of the HRU designed
endurance.
If the HRU is an HRC, it will not be self-propelled and the availability of a rescue
vessel needs to be a fundamental part of the evacuation plan. Ideally, this vessel
should be capable of lifting the HRC onto the back deck where it can be connected to
an LSP. Under ideal conditions, during the evacuation it may be possible to transfer
[2016] FWC 495the HRC directly from the damaged vessel (or barge, platform, etc.) to the rescue
vessel. In the worst case, if the weather prevents the safe lifting of the HRC onto the
rescue· vessel's deck, it may be secured alongside and connected to the LSP, if the
weather allows, or, alternatively, simply secured on a tow line. If the HRU is self-
propelled then it may still need assistance from a nearby vessel for towing or other
reasons. The availability of a suitable vessel within a reasonable timescale should be
considered as part of the planning process.
At the present moment, there are a limited number of custom designed systems
available for taking an SPHL onto a rescue vessel for the transit, so the main method
of transit will be towing if the SPHL trials demonstrate this is safe, or the SPHL's own
self-propelled capability. SPHLs may be able to make six knots, although this is not
always the case. Assuming six knots is possible, in good weather conditions the SPHL
may be able to cover 288 nautical miles in 48 hours but this cannot be taken as likely,
so the assumed maximum distance should be 200 nautical miles. If the SPHL can only
manage four knots under the best weather conditions, then 190 nautical miles is the
best possible, so a maximum of I SO nautical miles applies. The possibility should be
considered of securing the SPHL to the side of a vessel in a safe manner that can
increase the transit speed.
A system for recovering the SPHL onto a rescue vessel should be looked into and that
should include an LSP on the vessel to ensure life systems remain operational during
the transit.
In Norwegian waters there are three rescue vessels. One is the Havila Troll. Standard
ships' lifeboats can be recovered onto this rescue vessel, their occupants transferred
and the lifeboat returned to the sea. The last lifeboat to be recovered would be the
SPHL. The Havila Troll has an LSP built in, so the SPHL will be connected to
maintain the chamber environment during the transit to the HRF in Bergen. All of this
is standard within Norwegian waters but is not currently available elsewhere.
The information on the Havila Troll is an example of how the industry may be able to
move forward. In the meantime, the towage or self-propelled transits needs to be
considered the most normal.”
[32] It is clear from these extracts that the permanent provision of a recovery option, while
it may be desirable, is not considered by the industry as necessary for the safe operation of
Hyperbaric Evacuation Systems. By imposing such a requirement NOPSEMA is requiring a
practice in excess of industry standards. Instead of supporting its prohibition notice,
consideration of industry standards suggests that the prohibition notice in not issued on
reasonable grounds.
[33] A range of other arguments and factors were raised in the substantial evidence before
me. I have not found it necessary to deal with them in coming to my conclusion. As Inspector
Barnes, and NOPSEMA, in defending the prohibition notice, did not properly consider the
low probability of the risks involved, they placed inappropriate weight on the safety case
submitted by Technip for the project and they effectively required a practice at variance with
industry standards I am of the view that it did not conclude on reasonable grounds that the
separation of the vessels for 48 hours would involve an immediate threat to the health and
[2016] FWC 495
safety of the divers. Further, I am not satisfied that it was reasonable for the Inspector to
conclude that it was reasonably necessary to issue PN 614 in order to remove the threat.
Conclusions
[34] I have concluded that Prohibition Notice 614 was not based on satisfaction on
reasonable grounds that the separation of the Wellservicer and the North Sea Atlantic for 48
hours would involve an immediate threat to the health or safety of a person. I also conclude
that the prohibition notice was not based on satisfaction on reasonable grounds that it is
reasonably necessary to issue the notice in order to remove the threat. I have therefore decided
to allow the appeal and revoke the prohibition notice with immediate effect. It is not
necessary to consider the other arguments advanced by Technip in the matter. An order
revoking Prohibition Notice 614 is issued concurrently with the handing down of this
decision.
| VICE PRESIDENT |
| Appearances: |
| Mr J. Thomson SC, with Ms F. Clarke, on behalf of Technip. |
| Mr P. Macliver, with Ms S. Hillier, on behalf of NOPSEMA. |
| Hearing details: |
| 2016. |
| Perth. |
| 19 January. |
| Final written submissions: |
| Technip on 21 January 2016. |
| NOPSEMA on 26 January 2016. |
| Technip in reply on 27 January 2016. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR576416> |
0
0
0