The Australian Postal Corporation v Comcare

[2014] FWC 3228

[2014] FWC 3228 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

OH&S review authority

The Australian Postal Corporation
v
Comcare
(C2014/3526)

COMMISSIONER ROE MELBOURNE, 15 MAY 2014

Work Health and Safety Act 2011 - Application for external review - decision set aside and substitute Decision and Order made.

Background

[1] This is an application pursuant to section 229 of the Work Health and Safety Act 2011 (WHS Act). I conducted a hearing of this matter with the benefit of written submissions and witness statements on 13 May 2014. I also conducted an inspection of the premises at the corner of Williams and Charles Street St Albans Victoria (the premises). The premises are utilised as the St Albans mail delivery centre by the Applicant, The Australian Postal Corporation (Australia Post).

[2] The Applicant is seeking that I review and then determine to set aside a decision dated 5 March 2014 made by Mr Clay Boundy on behalf of the Respondent (Comcare). Comcare was asked by Australia Post to review a decision to issue a prohibition notice made by Inspector Suter on 12 February 2014. Mr Clay Boundy made an internal review decision pursuant to section 226 of the WHS Act. The decision and statement of reasons were published pursuant to section 227 of the WHS Act. The review decision states “my decision in relation to this matter is to vary the prohibition notice” and “the variations to the improvement notice are provided in the marked up version Notice No. NT-01-EVE223919-01A.” The decision maker provided what he referred to as an “amended version” of the 12 February 2014 notice with the reasons for his decision. Mr Boundy gave the amended notice a different identification number. Effectively it is the 12 February 2014 notice as varied by the internal review decision which is the subject of the present application.

[3] As a consequence of the original notice issued by Mr Suter and the review decision of Mr Boundy, Australia Post has been prevented from utilising the area under the north side canopy and the associated loading dock at the Delivery Centre which it operates at the premises.

[4] The variation made by Mr Boundy was in response to Australia Post’s argument that the directions given by Mr Suter were unreasonable in that Australia Post does not have control over the premises in order to make arrangements for repair work. The reviewer understood that the statement in Mr Suter’s prohibition notice, “repair to the north canopy by a competent person so that it is structurally sound”, was intended to refer to the length of time the prohibition will remain in force and not to what Australia Post must do to rectify any structural damage. For clarity the reviewer decided to vary the notice by deleting this phrase.

[5] In making his decision the reviewer considered a report from an engineer, Dr Baigent, provided by Australia Post that the canopy is structurally sound.

[6] The Applicant is seeking that the decision of Mr Boundy be set aside and that the amended improvement notice issued by Mr Boundy (and for the avoidance of doubt the earlier improvement notices which were the subject of internal review) also be set aside and that I determine that a further notice not be issued. In the event that the decision is not made immediately the Applicant seeks an interim decision staying the operation of the decision of the internal reviewer and the improvement notices. At the conclusion of the hearing of this matter I advised the parties of my intention to issue a final decision quickly and the parties agreed that it was therefore not necessary to consider the matter of an interim decision.

[7] On 4 February 2014 a member of the public drove their car into a column outside the delivery centre causing significant structural damage to the column which supports a canopy on the north side of the premises. The area under the canopy is a high traffic area used by Australia Post delivery vehicles. The significant damage to the column is obvious to the naked eye. The column is now neither vertical nor straight. The column has a significant lean and has large cracks running across it. The base of the column has become detached from a base plate with three metal pins and has shifted a significant distance from that base. 1

[8] On 4 February 2014 Mr Andrew Ermel, Building Inspector, City of Brimbank, issued an Interim Emergency Order pursuant to section102 of the Building Act 1993 (Vic.) prohibiting “use of the north side canopy”.

[9] On 5 February 2014, Comcare Inspector Mr Suter attended the premises and viewed workers undertaking their postal duties under the canopy area. The inspector took photographs and issued a prohibition notice pursuant to section 195 of the WHS Act.

[10] Mr Suter gave evidence which I accept concerning the circumstances which led him to issue the prohibition notice in February 2014. Mr Suter explained the basis for his belief that Australia Post employees and managers were continuing to utilise the area under the canopy despite an emergency council order prohibiting that activity. Mr Suter also gave evidence that he varied the prohibition notice to make it clear that workers undertaking repairs could access the area.

[11] Also on 5 February 2014, Ashley Hansen, Municipal Building Surveyor, City of Brimbank, issued to both the owner of the premises and Australia Post an Emergency Order pursuant to section 102 of the Building Act 1993 (Vic.) prohibiting the “occupation and use of the Delivery Centre canopy area”.

[12] The Emergency Order was issued on the basis of the Municipal Surveyor’s opinion that the damaged column gives rise to a “danger to life or property”. The Order requires both the owner and Australia Post to carry out building work set out in paragraphs 5.5 and 5.6.

[13] Paragraph 5.5.2 of the Emergency Order requires the removal of the damaged column.

[14] The temporary work required by the Emergency Order has been carried out. The area is fenced off. The substantive rectification work required by paragraph 5.5.2 of the Order has not been done.

[15] The parties agree that the Emergency Order is no longer relevant or valid.

[16] The parties agree and I am satisfied that the task of the Commission in these proceedings is to reach the correct and preferable decision on the material before me. That is the proceedings are to be determined by way of hearing de novo having regard to the current situation. The Commission has the powers 2 to confirm the decision subject to review, vary the decision, set aside the decision or make a different and substitute decision.

The grounds in support of the Application

[17] Australia Post raised four grounds for their Application:

1. Notice 3, the notice issued following the internal review which varied the earlier notice, is not valid as it is not issued by an inspector appointed under section 156 of the WHS Act. Australia Post submits that only an inspector can issue a notice pursuant to section 195 of the WHS Act. The internal reviewer is not an inspector.

2. Notice 1, Notice 2 and Notice 3 are not valid because the Respondent has not complied with the requirements of the sections 195 and 196 of the WHS Act. Australia Post submits that the inspector did not hold the bona fide belief that there was an immediate or imminent exposure to a hazard as required by sections 195 and 196. Australia Post argues that when attending the site on 10 February 2014 the inspector and others conducted activity directly beneath the canopy and in close proximity to the canopy. Australia Post submits that the internal review amounted to an assessment of the inspector’s conduct and belief and not an assessment of the canopy. Australia Post submits that the reviewer failed to properly take into account the report of the engineer Dr Baigent provided by Australia Post and other available engineering evidence. Australia Post submits that there was a failure to conduct a proper internal review.

3. The Respondent erred in finding that the Applicant has contravened or is likely to contravene section 19(1) of the WHS Act. Australia Post submits that this is for the same reasons as advanced in respect to ground 2. Section 19(1) requires Australia Post to ensure, as far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking. Workers in this context are those directly engaged by Australia Post or those whose activities are influenced or directed by Australia Post.

4. Notice 2 was not validly issued under section 206 of the WHS Act. Australia Post submits that section 206 of the WHS Act only allows a variation to the notice which is a “minor change”. Notice 1 was issued on 5 February 2014 and prohibited “access or egress of any person in the area under the north canopy”. Notice 2 was issued on 12 February but dated 5 February and prohibited “access or egress of any Australia Post worker in the area under the north canopy”. Australia Post argues that the change as to the persons affected by the notice from “any person” to “any Australia Post worker” is not a minor change.

[18] In respect to ground 1 Comcare submits that it is the decision of the internal reviewer which is able to be considered by FWC and is the subject of the Application, not the notice. In carrying out an internal review pursuant to section 226 of the WHS Act, Comcare has all of the powers of an inspector. That is section 226 of the WHS Act gives the reviewer the power to conform or vary the reviewable decision to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. The revised notice is simply a reflection of the decision of the internal reviewer to vary the reviewable decision.

[19] In respect to ground 2 Comcare submits that the validity of Notices 1 and 2 are not in issue in these proceedings. It is the internal review decision which is in issue and that decision replaces Notices 1 and 2. Comcare submits that it is conceivable that FWC could decide that the inspector was not justified in issuing the notice on the material before him but still conclude that issuing the notice was the correct decision on the material before FWC.

[20] In respect to ground 3 Comcare responds with the matters raised in respect to grounds 1 and 2.

[21] In respect to ground 4 Comcare submits that it is not necessary in these proceedings to determine whether or not the change from “any person” to “any Australia Post worker” is a minor change.

[22] I agree with the submissions of Comcare concerning the grounds in support of the Application.

[23] Comcare and Australia Post agree that FWC must consider whether or not the internal review decision was the correct and preferable decision. The various engineering reports concerning the risk are relevant to that consideration.

The actions of the inspector

[24] Even though it is not strictly necessary I consider it appropriate to comment on the submission that the integrity of the inspector’s decision was called into question because when attending the site on 10 February 2014 the inspector and others conducted activity directly beneath the canopy and in close proximity to the canopy. In order to carry out their functions inspectors may be placed or may place themselves in hazardous situations. Their task is to assess the risk faced by others and to make judgments about the appropriate response. The fact that an inspector might go into to a situation which they assess gives rise to risk to others such that they issue a prohibition notice does not suggest that the inspector did not hold a bona fide belief about the danger or risk to others. I am satisfied that on his first visit to the site the inspector reasonably believed that he was dealing with a situation where the local council inspector had issued an Emergency Order preventing access to the canopy and despite this Australia Post workers were working in the area. I am satisfied that on his subsequent visit to the site the inspector reasonably believed that it was appropriate for him and Mr Irwin to access the canopy for the purpose of further inspection.

[25] The legislation is primarily directed at the safety of workers. In this context I do not consider that there is any significant issue with the decision of Inspector Suter to clarify the scope of the notice directed at Australia Post as relating to Australia Post workers. No negative inference can be drawn from this decision.

[26] I am satisfied, having considered all of the evidence and having inspected the site, that Inspector Suter held a reasonable and bona fide belief at the time he issued the notice that there was a hazard and that there was an immediate or imminent exposure to the hazard of the canopy or damaged column collapsing and it was self evident that there was a risk of injury or death (self evidently a serious risk) if the canopy or the column was to collapse and fall on to a person.

[27] I can see nothing in the legislation which requires inspectors to have engineering qualifications or to seek expert opinion prior to exercising their judgment to issue a prohibition notice. However, in this case Inspector Suter was not alone in holding the view about the immediate or imminent risk. Building Inspector Ermel was of the same view and the Municipal Building Surveyor Hansen was also of that view.

[28] I can see no reasonable basis for criticism of the actions of Inspector Suter. He would quite properly have been the subject of criticism if he had failed to issue a prohibition notice in these circumstances.

Consideration of the evidence about the risks in the current circumstances

[29] Comcare accepts that since the time the original notice was issued two structural engineers have given consideration to and have reported on the safety of the structure. Both Dr Baigent and Mr Irwin express the opinion that complete collapse of the column and or roof is unlikely in the short term. I accept that Dr Baigent and Mr Irwin are expert witnesses with long and distinguished careers as consulting engineers.

[30] Immediate or imminent exposure to the hazard must result in serious risk to health and safety for a prohibition notice to be issued. The parties agree that the preconditions for the issuing of a prohibition notice no longer exist because the expert engineering advice is that complete collapse of the column is unlikely in the short term.

[31] The parties agree that it is appropriate to set aside the decision of the Comcare reviewer upholding the prohibition notice in an amended form.

[32] Australia Post argues that there is no residual or remaining risk which would justify any other decision of FWC. Australia Post submits that the likelihood of a further vehicle impact with the columns, including the damaged column, is very low. Comcare argues that there is a residual or remaining risk which would justify the making of a substitute decision or order to deal with that remaining risk.

[33] Dr Baigent and Mr Irwin disagreed in their reports as to whether subsidence of the column is occurring and as to whether future subsidence of the column is likely to be significant and affect the stability of the column. In cross examination Mr Irwin accepted that Dr Baigent had made assessments of the soil which he had not had the opportunity to make and he largely accepted Dr Baigent’s assessment that subsidence which would have a significant effect on the stability of the column was unlikely.

[34] Mr Irwin 3 considers that “make safe recommendations must be sought and implemented as soon as possible”.4

[35] Dr Baigent in his first report considered that the damaged column needs to be removed and the area fenced off until the column is removed. 5 Dr Baigent in his second report of 14 April 2014 confirmed his earlier recommendation that “the exclusion fence remain in place until the column was removed”.6 However, in his report of 14 April 2014 Dr Baigent says that this does not reflect any concern he has regarding the short to medium term stability of the damaged column.

[36] In their supplementary reports Mr Irwin and Dr Baigent agree that there is a danger to the stability of the column in the event of a further impact by a slow moving vehicle. Dr Baigent says that “if the column was to suffer another impact from a vehicle then further failure or possible collapse could occur”. 7 Dr Baigent gave uncontested evidence in proceedings that the columns in their undamaged state were not designed to withstand the impact of vehicle collision and that there was no Australian Standard which required that the construction of canopies in loading bays ensure that the supporting columns are able to withstand vehicle impact. Such an Australia Standard exists for car parks but that standard does not apply to situations such as the Australia Post delivery centre.

[37] Dr Baigent in answer to my question confirmed that there was a greater likelihood that the damaged column would collapse in the event of a vehicle impact than there was in the case of a vehicle impact with one of the undamaged columns. I am satisfied that this means that a greater risk to health and safety of Australia Post workers and other workers who utilise the facility has been created by the event that damaged the column.

[38] There was evidence in the proceedings of bollards that are in place in the loading bay to protect the roller door and also to protect the glass screened pedestrian entrance to the building from the loading bay in the event of vehicle impact. These bollards have been in place for some time and certainly prior to the incident in February which damaged the column. The photographs taken by Mr Suter show red paint marks and scratches on the bollard. This suggests that there may well have been previous accidental impact between vehicles and the bollard. 8

[39] Mr Irwin and Dr Baigent gave evidence that barriers could be effective in reducing risks associated with vehicle impact with building structures. They improve visibility and alert drivers and they provide protection against many collisions. However, they do not eliminate the risk of vehicular impact with the building structure. Dr Baigent in cross examination said that there were readily available means to reduce the risk of collision with the damaged column and that concrete or water filled barriers could be effective.

[40] Both Mr Irwin and Dr Baigent agreed that it was desirable that the damaged column be replaced.

[41] I have earlier found that the event which damaged the column has led to an increased the risk to the health and safety of workers using the facility. I am satisfied that this increased risk will continue to exist until the damaged column is replaced. I am also satisfied that the increased risk can be mitigated by appropriate temporary measures.

The inconvenience to Australia Post whilst access is restricted and the steps taken by Australia Post to repair the structure

[42] Mr Hollibone gave uncontested evidence for Australia Post concerning the inconvenience caused to workers and management at the St Albans site due to the restrictions on access to the canopy. Amongst other things Mr Hollibone said that the efficiency of work had been affected, unloading of mail was more difficult and labour intensive, workers were more exposed to uncomfortable climatic conditions, and car parking has been reduced. 9

[43] The parties agree that this inconvenience to the operations of Australia Post should be reduced by allowing access to the north side canopy and loading bay. Australia Post argues that there should be no remaining restriction on access. However, Comcare argues that removing restrictions on access should only be for a specified time period sufficient to allow the removal of the damaged column and the repairs to the structure. Comcare also argues that temporary barriers should be put in place to reduce the risk of a further collision with the damaged column. The parties agree that the temporary supporting prop that has been put in place and which is obstructing the driveway can be removed as the expert engineers agree that it is not necessary to prevent the collapse of the structure.

[44] There was no evidence led by Australia Post concerning the efforts made by Australia Post to get the building owner to repair the structure nor of the progress made in arranging the repair of the structure nor of the prognosis as to when any repairs might occur. The local Manager of the delivery centre did not give evidence.

Consideration

[45] This matter is before me pursuant to section 229 of the WHS Act. That section provides:

229 Application for external review

(1) An eligible person may apply to the Fair Work Commission for review (an external review) of:
(a) a reviewable decision made by the regulator; or
(b) a decision made, or taken to have been made, on an internal review.
(2) The application must be made:
(a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant’s notice; or
(b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant’s notice; or
(c) if the regulator is required by the external review body to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.
(3) The Fair Work Commission may do any of the following in relation to the decision to which the application relates:
(a) confirm the decision;
(b) vary the decision;
(c) set aside the decision and make a decision in substitution for the decision set aside.

[46] It is not in contention and I am satisfied that the preconditions for the making of the Application in sections 229(1) and (2) have been met. Both parties agree that I should act in accordance with section 229(3)(c). Mr Rozen for Comcare argues that my discretion under this provision is wide. Mr Rozen submits that I am of course bound by the obligations to act fairly, justly and avoiding unnecessary technicalities as set out in sections 577 and 578 of the FWA. I agree that these provisions apply as a consequence of section 576(2)(d) of the FWA.

[47] The Full Bench of the Australian Industrial Relations Commission in Australian National Railways Commission v Rutjens 10found that the Australian Industrial Relations Commission (AIRC) was not restricted to making the order the regulator ought to have made on the evidence before it. Rather the AIRC was conducting a hearing de novo. The AIRC was not restricted to the facts and law which existed at the date of the original decision of the regulator. The Full Bench also decided that the provisions of the Industrial Relations Act concerning the powers and procedures of the Tribunal generally applied to an appeal or review of the decision of the regulator under the occupational health and safety legislation. I am satisfied that these principles apply under the current legislative scheme

[48] Mr Taylor for Australia Post argues that section 229 empowers FWC to review a reviewable decision made by the regulator. 11 FWC in doing so stands in the shoes of the primary decision maker save that it does so at the present time. Mr Taylor therefore argues that the discretion only allows FWC to make a decision that the primary decision maker could have made.

[49] Mr Rozen submits that the equivalent power to section 229((3) of the WHS Act in the predecessor legislation the Occupational Health and Safety (Commonwealth Employment) Act 1991 at section 48 was as follows:

“(6) The reviewing authority may affirm or revoke the decision appealed against under subsection (1) or (2) and may, if it revokes the decision, substitute for the decision such other decision, being a decision of the kind appealed against, as it thinks appropriate.”

[50] It is apparent that the restriction “such other decision, being a decision of the kind appealed against” is not contained in the WHS Act. Given that the WHS Act resulted from a long and detailed process which considered the applicable legislation in the States and the Commonwealth with the aim of achieving nationally consistent legislation I accept that it is not likely that this omission is an oversight.

[51] In making my decision I should have regard to the Object of the WHS Act. That Object is as follows:

‘3 Object

(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; and

(b) providing for fair and effective workplace representation, consultation, co-operation 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 this jurisdiction.

(2) In furthering subsection (1)(a), 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 as is reasonably practicable.’

[52] I have particular regard to the provision in section 3(2) and the principle that workers should be given the highest level of protection from harm arising from workplace risks as is reasonably practicable.

[53] Although it might not be strictly necessary I also consider it appropriate to consider what decision might reasonably be open to the regulator in the changed circumstances which now apply at the Australia Post facility. Essentially this means consideration of a prohibition notice under section 195 and or an improvement notice under section 191.

[54] As I indicated earlier I am satisfied that at the time Inspector Suter issued his prohibition notice he was acting appropriately in accordance with section 195. However, the preconditions for issuing a prohibition notice do not currently exist because we now know that the serious risk to health and safety is not immediate or imminent.

[55] Section 191 provides as follows:

“191 Issue 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.”

[56] In the circumstances of this case the original contravention perceived by the inspector was the failure to prevent workers from working under the damaged canopy. It is likely that in the absence of intervention the contravention will continue in that there remains an increased risk of failure of the damaged column in the event of a further collision. Given that a collision event has occurred there is clearly a risk that it may occur again unless there is some change to the prevailing conditions. The most relevant sections of the legislation which may be the subject of contravention are as follows:

“17 Management of risks

A duty imposed on a person to ensure health and safety requires the person:

(a) to eliminate risks to health and safety, so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

18 What 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.

19 Primary 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.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a) the provision and maintenance of a work environment without risks to health and safety; and

(b) the provision and maintenance of safe plant and structures; and

(c) the provision and maintenance of safe systems of work; and

(d) the safe use, handling and storage of plant, structures and substances; and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

(4) If:

(a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and

(b) the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available;

the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety.

(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.”

[57] In the circumstances of this case the likelihood of further damage to the column is low. The degree of harm which may result from further damage to the column is high in that death or serious injury is possible if the column was to break. Australia Post is now well informed as a result of expert engineering advice about the hazard and the risk. They are also aware that the increased risk can be minimised by the replacement of the column and in the interim by the temporary measure of installing barriers. The means to minimise the increased risk are reasonably available. The cost of installing temporary barriers is low. I am satisfied that the barriers could be installed without seriously restricting access to the canopy or to the loading and unloading dock under the canopy. It is obvious that the cost of the longer term solution of replacing the damaged column would be greater however it is likely that this cost or much of the cost would not be the direct responsibility of Australia Post. It is also obvious that Australia Post does not have direct control over repairs to a building which it does not own however Australia Post as a major business and tenant can exercise some influence over these matters.

[58] I am satisfied that having regard to the primary duty of care and the duty in respect of management of risks applicable to Australia Post it is reasonably practical for Australia Post to meet its duty to minimise the risks associated with an incident or collision which might further damage the column. In reaching this conclusion I have regard to the Object in section 3(2) of the WHS Act. Why take the risk if there is a reasonably practical way, based upon the evidence, of mitigating that risk? I am satisfied that the nature of the Australia Post delivery centre is such that delivery trucks of various shapes and sizes are required to manoeuvre in a relatively confined space and that there may be more than one vehicle present at one time and a number of potential conflicting movements. I am satisfied that the risk of accidental contact with elements of the structure of the canopy is significant. It is not a fanciful or negligible risk.

[59] In these circumstances I am satisfied that the regulator might reasonably issue an improvement notice.

[60] It is obvious that the risk of accidental contact between vehicles and the structure of the canopy cannot be eliminated. It is also clear that there is significant inconvenience and cost to the business associated with not having access to the canopy. I am not satisfied that it is appropriate or reasonably practical to prevent access to the canopy or to require that the canopy structure be able to withstand the effect of all possible accidental collisions. It is the additional risk which arises from the possibility of further damage to the damaged column that it is reasonable to minimise. It is also desirable that the additional risk be eliminated by the replacement of the damaged column but the timing of this is not controlled by Australia Post.

Conclusion

[61] I have decided as follows:

a. Pursuant to section 229(3)(c) the decision of the Regulator (Comcare) by Mr Clay Boundy of 5 March 2014 is set aside and I make this decision in substitution for that decision. Any orders or notices issued by the regulator in respect to the Australia Post facility operating at the corner of Williams and Charles Street St Albans Victoria referred to in the decision of 5 March 2014 are also as a consequence set aside. For the avoidance of doubt this means that any requirements imposed by the Regulator or as a consequence of the decisions of the Regulator for any temporary remedial structures to secure the safety of the north side canopy and the damaged column which is part of that canopy are removed.

b. All restrictions on Australia Post and its workers having access and egress to the north side canopy and associated loading dock are removed subject to the implementation of the restriction specified in (c) below.

c. Australia Post are required to install or have installed sufficient removable temporary water-filled barricading on the south and west sides of the damaged column to minimise the risk of further accidental damage to that column.

d. The order will provide that the restriction in (c) is to apply for a period of six months from the date of this decision and consequential order or until the damaged column is replaced if that replacement occurs earlier. The barricading may be removed or adjusted as required for the efficient and safe conduct of any replacement works.

e. In the event that the damaged column has not been replaced five months after the date of this decision the Regulator or Australia Post may apply for a variation to the order having regard to the circumstances applying at that time.

f. The Regulator and Australia Post are to consult about the installation of the temporary removable barriers referred to in (c) above. If the Regulator is satisfied with the location and extent of the temporary removable barriers installed or proposed to be installed by Australia Post in accordance with (c) above then this is deemed sufficient to meet the requirements of this decision and consequential order. In the event that the Regulator is not satisfied with the location and extent of the temporary removable barriers installed or proposed to be installed the parties are at liberty to apply for a variation to the order published with this decision to provide greater specificity.

COMMISSIONER

Appearances:

Mr Rob Taylor, Counsel for the Applicant.

Mr Peter Rozen, Counsel for the Respondent.

Hearing details:

2014

Melbourne

May 13

 1   Exhibit C4 and photographs attached to Exhibit C1.

 2 s.229(3) of the FWA.

 3   Exhibit C2.

 4   Exhibit C2 at paragraph 6.3.

 5   Exhibit A1 at page 4.

 6   Exhibit A2 at page 6.

 7   Exhibit A2 at page 4.

 8   Photographs attached to Exhibit C1.

 9   Exhibit A4.

 10 (1996) 666 IR 237 or Print N1939.

 11 Section 229(1) of WHS Act.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR550623>