University of the Sunshine Coast v The Regulator under the Work Health and Safety Act 2011
[2022] QIRC 298
•24 June 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION:
University of the Sunshine Coast v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 298 PARTIES: University of the Sunshine Coast
(Applicant)v
The Regulator under the Work Health and Safety Act 2011
(Respondent)CASE NO.:
WHS/2022/82
PROCEEDING:
Application for a stay DELIVERED ON:
24 June 2022 HEARING DATE:
24 June 2022
MEMBER:
HEARD AT:
Merrell DP
Brisbane
ORDERS:
1. Pursuant to s 229C(1) of the Work Health and Safety Act 2011, the Respondent's internal review decision dated 29 April 2022 ('the internal review decision') is stayed on the condition that the improvement notice (notice I2042426) the subject of the internal review decision is also stayed.
2. Pursuant to s 229C(2)(b) of the Work Health and Safety Act 2011, the stay of the internal review decision and of the improvement notice the subject of the internal review decision (notice I2042426), will operate until the Applicant's application for the external review of the internal review decision is heard and determined by the Commission.
3. The costs of the Applicant's application for a stay are reserved.
CATCHWORDS: INDUSTRIAL LAW - WORK HEALTH AND SAFETY - DUTIES AND LIABILITIES - INVESTIGATIONS AND SECURING COMPLIANCE - Application for external review of Improvement Notice issued under the Work Health And Safety Act 2011 - Application for stay - Applicant is the University of the Sunshine Coast - on 17 March 2022, an Inspector, under the Work Health and Safety Act 2011, made a decision to issue an Improvement Notice to the Applicant because it was charging nursing students to be fit tested for respiratory protective equipment to complete clinical placements as part of their course of study - the Inspector reasonably believed the Applicant was contravening s 273 of the Work Health and Safety Act 2011 which prohibits the imposition of a levy or charge on a worker for anything done or provided in relation to work health and safety - Applicant applied for review of decision with the Regulator - Regulator made internal review decision confirming the decision to issue the improvement notice - Applicant applied to Commission for external review of internal review decision by the Regulator - Applicant applied for stay of internal review decision pursuant to s 229C of the Work Health and Safety Act 2011 to secure the effectiveness of the external review - whether discretion should be exercised and the internal review decision stayed - matters to be relevantly considered in whether stay should be granted - Applicant has an arguable case on external review and the balance of convenience favours the granting of the stay sought - stay granted
LEGISLATION:
Education (Work Experience) Act 1996, s 4 and s 10
University of the Sunshine Coast Act 1998, s 4, s 5 and s 10
Work Health and Safety Act 2011, s 7, s 16, s 191, s 224, s 226, s 229B, s 229C, s 273 and sch 1, pt 2, div 5
Work Health and Safety Regulation 2011, s 44
CASES: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67; (2021) 284 FCR 54
Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61
MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235
Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v A2 [2019] HCA 35; (2019) 269 CLR 507
State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 190
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 375
APPEARANCES: Mr P. O'Neill of Counsel instructed by Ms L. Hillman of Clayton Utz for the Applicant.
Mr P. Waltham and Ms P. Lock of the Respondent.
Reasons for Decision (ex tempore)
Introduction
[1]The University of the Sunshine Coast ('the University') is established pursuant to s 4(1) of the University of the Sunshine Coast Act 1998. Pursuant to s 5 of that Act, the functions of the University relevantly include:
(a)the provision of education at university standard;
(b)the provision of courses of study or instruction, at the levels of achievement the council considers appropriate, to meet the needs of the community; and
(c)the provision of facilities and resources for the wellbeing of the university’s staff, students and other persons undertaking courses at the university.
[2]The University offers the degree of Bachelor of Nursing Science whereby students are required to undertake clinical placements with providers who are external to the University.
[3]One of the providers is the State of Queensland through Queensland Health ('the Department'). It is not in dispute that other clinical placement providers include private providers such as the operators of aged care facilities.
[4]Presently, the following five facts do not seem to be in dispute between the parties:
(a)first, in June 2021, the University was informed by the Queensland Ambulance Service ('QAS') that fit testing for N95 masks was soon to become mandatory and that students must provide evidence of fit testing to undertake a placement;
(b)secondly, the University, at that time, was also informed that QAS and the Department did not have the capacity to provide mask fit testing themselves and, as a result, students were undertaking, at their own cost, fit testing with external providers to meet the requirements of the placement providers;
(c)thirdly, in January 2022, the Department advised the University that it could not readily accommodate fit testing for prospective students attending clinical placements;
(d)fourthly, the University did not have the ability to waive or provide exemptions to the placement providers' mask fit testing requirements; and
(e)fifthly, the University:
(i) coordinated fit testing availability with a mask fit provider for testing two different mask types, with a cost to students of $65.00;
(ii) provided, at its own cost, two different mask types to be used for the fit tests;
(iii) provided students with a subsidy to the value of, on average, $45.00; and
(iv) if a student was required to attend a further mask fitting session, paid the entire cost of the additional session.
[5]On 17 March 2022, Inspector Gavin Roberts of the Office of Industrial Relations ('OIR'), an Inspector within the meaning of pt 9 of the Work Health and Safety Act 2011 ('the Act'), pursuant to s 191 of the Act, issued the University with an improvement notice because Inspector Roberts reasonably believed that the University was contravening s 273 of the Act ('the Improvement Notice').
[6]Section 273 of the Act provides that a person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety.
[7]Inspector Roberts specified in the Improvement Notice that the contravention had to be remedied before 25 March 2022.
[8]On 31 March 2022, the University, pursuant to s 224 of the Act, applied to the Regulator, established pursuant to pt 8 of the Act, for an internal review of the decision to issue the Improvement Notice.
[9]By decision dated 29 April 2022, the Regulator, pursuant to s 226(2)(a) of the Act, confirmed the Improvement Notice ('the internal review decision').
[10]By application filed on 30 May 2022, the University, pursuant to s 229B of the Act, applied to this Commission for an external review of the internal review decision.
[11]On the same day, the University, pursuant to s 229C of the Act, applied for a stay of the internal review decision, including the Improvement Notice.
[12]The question that currently requires my determination is whether or not, pursuant to s 229C(1) of the Act, I should grant the stay sought by the University.
Further background
[13]Inspector Roberts' evidence is that:
(a)on 14 March 2022, in response to a complaint made to the Regulator, he attended the University and met with Mr Adrian Hulme, Manager, Health Safety and Wellbeing of the University;
(b)he and Mr Hulme discussed the subject of the complaint, being that nursing students were being charged a fee by the University for fit testing of respiratory protective equipment, namely, masks, being testing which was required before they could undertake workplace placements as part of their course of study;
(c)Mr Hulme told him that the University was charging a fee to nursing students for fit testing for masks that was required for those placements;
(d)he (Inspector Roberts) advised that he considered that the students undertaking work placements were workers under s 7 of the Act and that the imposition of such a fee by the University to be a contravention of s 273 of the Act;
(e)Mr Hulme advised him that the University had sought legal advice, that the decision was based on s 4 of the Education (Work Experience) Act 1996, and that as the placements were required by the course of study, they were not defined as work experience;
(f)later that day, he (Inspector Roberts) received an email from Mr Hulme in which Mr Hulme:
(i) stated that the '… decision by USC to charge students for fit testing of PPE was based on our assessment of the definition of work experience under the Education (Work Experience) Act 1996.';
(ii) set out s 4 of the Education (Work Experience) Act 1996; and
(iii) made the representation that, based upon that provision, the assessment of the University was that it considered that nursing students did not meet the definition of 'worker' under s 7 of the Act; and
(g)he (Inspector Roberts) then sought advice from within OIR and, on 16 March 2022, formed the reasonable belief that the University was contravening s 273 of the Act, subsequent to which he issued the Improvement Notice.
[14]The Improvement Notice (notice I2042426) stated that Inspector Roberts, on 16 March 2022, reasonably believed that the University was contravening s 273 of the Act.
[15]Inspector Roberts, in the Improvement Notice, further relevantly stated:
The person conducting the business or undertaking is imposing a levy or charge on a worker for something done, or provided, in relation to work health and safety. You told me the University of the Sunshine Coast are charging nursing students to be fit tested for respiratory protective equipment that is required for them to complete placements as part of their course of study. Placements are conducted with either Queensland health or private healthcare facilities.
Under section 7 of the Work Health and Safety Act, a student gaining work experience is a worker.
The principles in respect of the application of s 229C of the Act
[16]Section 229C of the Act provides:
229C Stay of operation of decision
(1)The commission may grant a stay of the decision to secure the effectiveness of the review.
(2)A stay-
(a)may be given on the conditions the commission considers appropriate; and
(b)operates for the period fixed by the commission; and
(c)may be revoked or amended by the commission.
(3) The period of a stay must not extend past the time when the commission decides the application.
(4) An application affects the decision, or carrying out of the decision, only if the decision is stayed.
[17]I note that s 229C(1) of the Act provides that the Commission may grant a stay of the decision '… to secure the effectiveness of the review.'
[18]However, the parties, as between themselves, were generally in agreement about the principles that guide the exercise of a discretion such as that provided in s 229C(1) of the Act. Those principles were recently summarised by Vice President O'Connor in State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act 2011,[1] where his Honour relevantly stated:
[1] [2021] QIRC 190.
Principles for Stay
[10] The principles governing the exercise of a discretionary power to stay were enumerated in Alexander v Cambridge Credit Corporation Ltd. Those principles are summarised as follows:
1.The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.
2.The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.
3.The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.
4.Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
5.The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.
[11] The Applicant submits that for the purposes of this stay application, the following principles taken from above are apposite:
·there must be an arguable case on the merits;
·the Commission's discretion involves weighing considerations such as balance of convenience and competing rights of the parties; and,
·the risk of the Application proving abortive.
Arguable case on the merits
[12] As previously outlined in the Commission, a 'good arguable' case is 'one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 per cent chance of success'. It is a less stringent test than requiring proof on the balance of probabilities.[2]
[2] Citations omitted.
The University's submissions
A good arguable case
[19]The University submits that, on external review, it has a good arguable case.
[20]The University contends the decision to issue the Improvement Notice was incorrect because there was no basis for the Inspector to hold a reasonable belief that it was contravening a provision of the Act.
[21]This was said to be on five grounds, namely:
(a)the factual conclusions in the internal review decision are not supported by the documentation provided to the Respondent during the internal review process ('the University's first ground');
(b)the Respondent failed to consider or give sufficient weight to the factual evidence available ('the University's second ground');
(c)the Respondent's interpretation of s 273 of the Act is erroneous, having regard to the purpose of the Act and to the Acts Interpretation Act 1954 (Qld), and therefore the Inspector could not have reasonably believed that the Applicant was contravening section 273, including that:
(i) first, if clinical placement students are workers for the purposes of the Act, they are not workers of the University as a person conducting a business or undertaking ('a PCBU'), but are workers of the PCBUs where they are performing their placements;
(ii) secondly, providing financial support to students to assist them meet a placement provider's requirements is not imposing a charge or levy; and
(iii) thirdly, if there is a breach of s 273 of the Act, the appropriate PCBU who should be receiving an improvement notice is the placement provider requiring students to obtain and pay for external fit testing ('the University's third ground');
(d)the Inspector erred in issuing the Improvement Notice because:
(i) first, there was no basis for the Inspector to hold a reasonable belief that the Applicant had breached s 273 of the Act;
(ii) secondly, there was no basis for the Inspector to hold a reasonable belief that the University was charging students to be fit tested for respiratory protective equipment that is required for them to complete placements as a part of their course of study; and
(iii) thirdly, there was no basis for the Inspector to hold a reasonable belief that the students were workers for the purposes of the Act ('the University's fourth ground'); and
(e)the Inspector did not make reasonable inquiries of the Applicant ('the University's fifth ground').
[22]Further, in its principal written submissions, the University submits:
15. The requirement for the students to be fit tested for respiratory masks to go on clinical placements is a requirement of the placement providers which are PCBUs in their own right. It is not a requirement of the Applicant.
16. The Applicant's role is to facilitate the fit testing occurring to assist both the students and the placement providers. The Applicant is effectively a conduit for the payment of funds to the organisation conducting the fit testing.
17. If any one of the five grounds are made out, the Decision ought to be overturned.
18. The Applicant submits that there is a strongly arguable case that one or more of the grounds are made out and the Decision should be set aside and substituted with a decision to set aside the Improvement Notice ab initio, or from the date of the Commission's decision on the Application.
Balance of convenience
[23]In terms of the balance of convenience, the University submits:
(a)it will suffer real prejudice if the stay is not granted being that referred to in paragraphs 10 to 14 of the affidavit of Ms Hilary Searing filed on 30 May 2022 ('Ms Searing's affidavit');
(b)that prejudice includes:
(i) first, if it is required to fully fund the cost of the fit testing, it is likely that there will be difficulties in recovering those payments from students in that, as Ms Searing deposes, there are approximately 2,700 students involved and, as a consequence, the financial impact for the University will be significant;
(ii) secondly, there will also be significant additional administrative costs in trying to recover payments from the students;
(iii) thirdly, considerable staffing resources will be expended changing the University's internal processes to facilitate fit testing which will have to be reversed if its substantive application is successful; and
(iv) fourthly, the potential prejudice that the students may suffer is as indicated in paragraph 14 of Ms Searing's affidavit (which I will refer to below); and
(c)there is no immediate or imminent risk to the safety of a worker involved in this matter, and the University has sufficient financial resources to refund any contribution made by the students to the fit testing cost if the University is not successful in its application;
(d)the University remains at risk of prosecution by Work Health and Safety Queensland ('WHSQ') for any failure to comply with the Improvement Notice;
(e)the Regulator will not suffer any prejudice if a stay is granted;
(f)the WHSQ's right to ensure safe workplaces through the issue of improvement notices is not prejudiced given that the University is at all times required to comply with its obligations under the Act and the relevant Regulations; and
(g)in assessing the competing rights of the parties, the Commission ought to find that the University's rights weigh heavier in favour of granting the stay, particularly so in circumstances where a new semester is about to commence and there will be ongoing need for students to be fit tested.
[24]Ms Searing's evidence was, relevantly:
(a)students are required to undertake a specified number of hours performing work for the allocated external placement provider to meet the requirements of their course of study;
(b)the University pays external placement providers for the placements;
(c)the number of students that are usually undertaking the external placements per study period, with the periods being January to June and July to December, is 2,700;
(d)if students are unable to complete placement days, including due to not being fit tested as required by the external placement provider, they are required to undertake further days to make up for the lost time;
(e)if the University ceases facilitating mask fit testing and providing students with a subsidy, in compliance with the Improvement Notice, it will be exposed to the risk of incurring additional costs for additional placement days to ensure students meet the required number of days for placement;
(f)if the University ceases facilitating mask fit testing and providing students with a subsidy in compliance with the Improvement Notice, its students will also suffer significant prejudice if the stay is not granted because:
(i) first, if the external placement providers do not provide the fit testing, students will be required to bear the full cost of the fit testing, including any re-testing that needs to be undertaken which can be a substantial sum because, on occasions, three or four fit tests may be required; and
(ii) secondly, delays in undertaking fit testing or re-testing may impact the students being able to undertake external placement which may delay their ability to obtain the course qualification;
(g)the University has sufficient financial resources to repay students, if it is required to do so, to comply with the Improvement Notice, if it is unsuccessful in its substantive application; and
(h)because it is a requirement for students to be fit tested to attend placements by the external placement providers, that requirement cannot be changed by the University and it will continue during the time taken for the review to be conducted by the Commission.
[25]On 22 June 2022, the University also filed an affidavit of Ms Tracey Jane Tucker, General Manager of the Academic Support Unit of the University. Relevantly, Ms Tucker's evidence was that:
(a)the accreditation standards of the Australian Nursing & Midwifery Accreditation Council require that the Bachelor of Nursing Science students, enrolled at the University, must undertake a minimum number of professional experience hours within a professional setting and, as such, the relevant students undertake professional experience hours at external clinical placements;
(b)at the time of making her affidavit, the University was not currently facilitating fit testing for students and the next cohort of nursing students was not to commence placement until 1 August 2022;
(c)students on clinical placements between 24 June 2022 and 1 August 2022 have previously been fit tested to comply with placement providers' requirements;
(d)at the time the University received the Improvement Notice, the cost to students for mask fit testing was $65.00;
(e)approximately 1000 nursing students will need to be fit tested in the second half of 2022, depending on final enrolments and mask availability; and
(f)if the stay is not granted, that may mean the University will have to pay a portion of the costs for fit testing.
Abortive application
[26]In reliance on the decision in Alexander v Cambridge Credit Corporation Ltd,[3] the University also submits that an application for a stay would normally be granted where there is a risk that the appeal will prove abortive if the appellant fails to secure a stay.
[3] (1985) 2 NSWLR 685 ('Alexander'), 695 (Kirby P, Hope and McHugh JJA).
[27]The University then submits that the prospect of an aborted application arises because without a stay:
(a)it will be required to remedy the breach identified in the Improvement Notice which will inevitably involve the type of process changes referred to in paragraph 11 of Ms Searing's affidavit[4] and incur the involved costs; or
(b)it will be liable to prosecution by WHSQ for any perceived failure to comply with the Improvement Notice which might arise prior to a decision being made on its substantive application, notwithstanding that the Commission's decision may ultimately result in the Improvement Notice being set aside; and
(c)if additional costs are incurred by the Applicant, as posited by Ms Searing in paragraphs 10, 12e and 13 of her affidavit,[5] it is likely that those additional costs will not be recoverable by it if it is successful in its substantive application.
[4] Namely, the University will also need to expend considerable staffing resources to address changing its internal processes to facilitate fit testing which will then need to be reverted should the External Review be successful (paragraph 11 of Ms Searing's affidavit).
[5] Namely:
·if the University is required to incur the full costs for the fit testing of future students, it is unlikely that the it will be able to recover that money from students if successful in its External Review (paragraph 10 of Ms Searing's affidavit);
·if students are unable to complete placement days, including due to not being fit tested as required by the external placement provider, they are required to undertake further days to make up for the lost time (paragraph 12 e of Ms Searing's affidavit); and
·that if it ceases facilitating mask fit testing and providing students with a subsidy in compliance with the Improvement Notice, the University is exposed to the risk of incurring additional costs for additional placement days to ensure students meet the required number of days for placement (paragraph 13 of Ms Searing's affidavit).
The Regulator's submissions
Arguable case on the merits
[28]By way of background, the Regulator relevantly submits that:
(a)tested respiratory protection masks constitute personal protective equipment required to be used to minimise health and safety risks in workplaces;
(b)nursing students are required to have fit tested masks in order to undertake work placements at healthcare facilities;
(c)the University requires those nursing students to undertake work through such placements as part of mandatory course requirements;
(d)the student nurses undertaking work experience for the host PCBUs are clearly workers as defined by s 7 of the Act because that definition encompasses all persons carrying out work in any capacity for a PCBU and it specifically references a student gaining work experience;
(e)sections 44(2) and (3) of the Work Health and Safety Regulation 2011 ('the Regulation') relevantly provide that a PCBU who directs the carrying out of work must provide the PPE of suitable size and fit to the worker unless it has been provided by another PCBU;
(f)the University directs the students carry out the work in host PCBU workplaces by mandating the work experience as part of their course requirements;
(g)section 273 of the Act does not require the work to be performed directly for the PCBU for the charge or levy imposed to be unlawful;
(h)section 273 of the Act renders it unlawful for any PCBU to impose a charge or levy on any worker for the provision of anything, or the doing of anything, in relation to work health and safety; and
(i)it is unlawful for the University to impose a charge, levy, or any fee, however named, for either the provision of fit tested masks or for the fit testing of masks for students gaining work experience in any workplace.
[29]The Regulator then addressed the five grounds referred to by the University made in support of its claim that it has a good arguable case on external review.
The University's first and second grounds
[30]The Regulator submits these grounds are misconceived because an external review is a hearing de novo and the internal review decision is not relevant to the Commission's decision on external review.[6]
[6] Citing Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61, [3]-[5] (Deputy President O'Connor).
The University's third ground
[31]The Regulator submits that while the students are performing work in host PCBU workplaces, that is immaterial to the contravention as the University is a person who has directed the performance of the work as part of its course requirements for the students, such that the University is required by s 44 of the Regulation to provide the fit tested masks without charge to the students in their capacity as workers, if not provided by the host PCBU.
[32]The Regulator further submits that:
(a)section 273 of the Act operates to prohibit the imposition of any such charge on any workers, not just those undertaking work in the business or undertaking of the person imposing the fee or charge;
(b)section 16 of the Act provides that more than one person can concurrently have the same duty (imposed under the Act), that each duty holder must comply with that duty to the standard required by the Act even if another duty holder has the same duty; and, if more than one person has a duty for the same matter, each person retains a responsibility for the person's duty in relation to the matter and must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter;
(c)while the host PCBUs also have a duty under s 273 of the Act in the present case, it is the University that is imposing the charge or levy, not the host PCBUs, and the University has the concurrent duty not to impose a charge or levy; and
(d)the fee charged by the University to the students is not some type of financial support or subsidy and it is evident from Mr Hulme's email to Inspector Roberts sent on 14 March 2022, and from paragraphs 19 (a) and (b) of the University's principal submissions, that the fees are being charged and that a subsidy is not being provided.
The University's fourth ground
[33]The Regulator submits that there is no merit to the University's fourth ground because:
(a)first, the basis for Inspector Roberts' reasonable belief is the email he received from Mr Hulme on 14 March 2022;
(b)secondly, the University's contention that the students charged are not 'workers' for the purposes of the Act, by reference to the definition of 'work experience arrangements' contained in s 4(2) of the Education (Work Experience) Act 1996, is erroneous because:
(i) s 4(2) of the Education (Work Experience) Act 1996 does not operate to preclude students from the definition of 'worker' within the meaning of s 7 of the Act;
(ii) s 10(3) of the Education (Work Experience) Act 1996 expressly provides that the Act applies to work experience as if the student is a worker and the work experience provider is an employer; and
(iii) sch 1, pt 2, div 5, item 7(3) of the Act provides that it prevails over the Education (Work Experience) Act 1996 to the extent of any inconsistency.
The University's fifth ground
[34]The Regulator submits that while an Inspector must have regard to evidence plainly available in coming to a reasonable belief, they are not required to go down every dry gully searching for possible evidence to consider before reaching a conclusion that the Act is being contravened.[7] Again, the Regulator submitted that Mr Hulme's email to Inspector Roberts was more than sufficient to form the basis of Inspector Roberts' reasonable belief of the contravention
[7] Citing Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 375, [61]-[63] (Industrial Commissioner Dwyer).
The balance of convenience
[35]The Regulator submits:
(a)students undertaking future work placements will suffer financial hardship by the University continuing to impose this charge;
(b)in the event that the stay is granted, the financial burden placed on these students far outweighs any financial or administrative burden placed on the University if it is refused;
(c)that the University remains at risk of prosecution for failure to comply with the Improvement Notice is a neutral consideration because the University will continue to be bound by its obligations under the Act and remains potentially liable for prosecution for any further or future contraventions, regardless of any decision made in relation to the stay sought;
(d)while a stay of the Improvement Notice will not result in any immediate risk to workers, such a stay serves to frustrate one of the main objects of the Act, namely, providing for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by a number of means, including securing compliance through effective and appropriate compliance and enforcement measures;
(e)if a stay is granted, the Regulator will be clearly inconvenienced in the conduct of its functions under the Act, in particular, that of monitoring and enforcing compliance with the Act; and
(f)what the University seeks is not a stay on any obligation to reimburse those students already charged the fee, but the tacit approval of the Commission to continue charging such fees to students undertaking placements until the hearing of the external review application.
[36]In oral submissions, Mr Waltham, on behalf of the Regulator, submitted that the balance of convenience favours his client because of the evidence in Inspector Roberts' supplementary affidavit that the Sunshine Coast Hospital and Health Service now provides, on a Monday to Friday, respirator fit testing free of charge to students and that there was no evidence what other Hospital and Health Services and other placement providers were doing in that regard.
Abortive application
[37]The Regulator submits:
(a)in the event that the stay is not granted, the University is not required to immediately implement major administrative and procedural changes as alleged in Ms Searing's affidavit, in that all that is required is that it temporarily cease imposing this charge on nursing students until the hearing of the substantive application;
(b)if ultimately successful, the University can reinstate the fee and seek reimbursement from those students not 'subsidised' prior to the ultimate decision;
(c)any stay of the Improvement Notice does not impact on the University's duty to comply with the Act in the future, in that all persons who contravene the Act may be liable for prosecution by WHSQ, which is independent of the Regulator; and
(d)if WHSQ elected to prosecute the University for failure to comply with the improvement notice pending finalisation of an external review of the notice, then a subsequent decision of the Commission to hold the notice void ab initio would constitute an absolute defence to such a charge.[8]
[8] Citing MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235, [50] (Vice President O'Connor).
The relevant provisions of the Act
[38]Section 3 of the Act sets out its object which, principally, is to provide for a balanced and nationally consistent framework to ensure the health and safety of workers and workplaces by, amongst other measures:
(a)as set out in s 3(1)(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 particular types of substances or plant; and
(b)as set out in s 3(1)(e), securing compliance with the Act through effective and appropriate compliance and enforcement measures.
[39]In respect of securing compliance with the Act, pt 10 provides for enforcement measures. Section 191 of the Act confers discretion on Inspectors, appointed under pt 9 of the Act, to issue improvement notices if an Inspector reasonably believes a person is contravening a provision of the Act or has contravened a provision in circumstances that make it likely that the contravention will continue to be repeated.
[40]Section 193 provides that a person to whom an improvement notice is issued must comply with the notice within the period stated in the notice. The maximum penalty of 500 penalty units applies for non-compliance.
[41]Section 273 of the Act provides:
273 Person not to levy workers
A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety.
Maximum penalty—50 penalty units.
[42]The nouns 'levy' and 'charge' are not defined in the Act. The ordinary meaning of 'levy', in the context it is used in s 273, is '… a raising or collecting, as of money … by authority.'[9]
[9] Macquarie Dictionary (7th ed 2017) 'levy' (def 1).
[43]The ordinary contextual meaning of 'charge' is '… to list or record as a debt or obligation; enter as a debit.'[10]
[10] Macquarie Dictionary (7th ed 2017) 'charge' (def 13).
[44]The noun 'worker' is defined in s 7 of the Act which relevantly provides:
7 Meaning of worker
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as-
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or
(d) an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or
(i)a person of a prescribed class.
Does the University have an arguable case on the merits?
[45]It is not in dispute that tested respiratory protection masks constitute personal protective equipment required to be used to minimise health and safety risks in workplaces.
[46]It is also not disputed that the University, to support students and simplify the process of the required fit testing:
(a)undertook '… co-ordinated fit testing availability with a mask fit provider for testing two different mask types with a cost to students of $65.00'; and
(b)provided students with a subsidy to the value of, on average, $45.00.
[47]Mr O'Neill on behalf of the University conceded, correctly in my view, that on the evidence it filed, in the course of co-ordinating fit testing availability for the relevant students, it required the relevant students to pay $65.00 to it which it then passed onto the organisations providing fit testing.
[48]This can only mean that in respect of mask fit testing, the University was charging students, for the fit testing it co-ordinated for them, a fee of $65.00.
[49]The $65.00 fee, on any reasonable consideration, is a charge within the ordinary meaning of that noun as used in s 273 of the Act. That charge was imposed on the relevant students by the University.
[50]The first part of the phrase '… for anything done, or provided, in relation to work, health and safety', in s 273, namely, '… for anything done, or provided' obviously contemplates, at least, some act done or thing or service provided.
[51]The second part of the phrase, namely '… in relation to work health and safety' contemplates some relationship between the act, thing or service provided, and work health and safety, where the degree or closeness of the contemplated connection is to be determined by the statutory context.[11] By virtue of the objects of the Act, and the very broad words used in s 273 of the Act, my view is that the connection between the two subject matters is not one that is narrow.
[11] Joseph v Parnell Corporate Services Pty Ltd [2021] FCAFC 67; (2021) 284 FCR 546, [110]-[112] (Logan, Katzmann and Snaden JJ).
[52]Having regard to the above, my preliminary view is that the imposition by the University to the relevant students of $65.00, for the fit testing of masks it co-ordinated, was a charge imposed on the students in relation to work health and safety.
[53]Furthermore, it cannot be in dispute that the University is a person conducting a business or undertaking within the meaning of s 273 of the Act.
[54]However, these conclusions do not mean that, by its conduct of charging a fee to the students for the fit testing, there is not an arguable case on the merits for the University.
[55]The five grounds relied upon by the University in its submissions need to be considered.
The University's first and second grounds
[56]The University's first and second grounds are not meritorious. The external review by the Commission is a hearing de novo unaffected by the internal review decision.
[57]The contention that the Regulator made the internal review decision not supported by documentation provided by the University or that the Regulator erred in fact in coming to the internal review decision is not relevant to any decision to be made by the Commission on external review.
The University's third ground
[58]The University submits that if clinical placement students are workers for the purposes of the Act, they are not workers of the University but are workers of the clinical placement providers for the students. On this basis, the University contends that Inspector Roberts could not have reasonably believed the University was contravening s 273 of the Act.
[59]I have some difficulty with the Regulator's submissions about this ground.
[60]I agree that s 4 of the Education (Work Experience) Act 1996 does not operate to preclude the relevant students from the definition of 'worker' within the meaning of s 7 of the Act. Section 4 of the Education (Work Experience) Act 1996 merely defines what will and will not amount to a 'work experience arrangement' within the meaning of that Act.
[61]Section 10(1) of the Education (Work Experience) Act 1996 only provides that a student on work experience is not taken to be an employee of the work experience provider and the provider is not taken to be the employer of the student. However, s 10(3)(a) of the Education (Work Experience) Act 1996 then provides that the Act applies to 'work experience' as if the student were an employee or worker and the work experience provider were an employer. The University, in the circumstances of the present case, could not be reasonably seen to be a work experience provider. In the circumstances of the present case, a work experience provider may be the clinical placement provider, such as, for example, the Department or a Hospital and Health Service.
[62]While the placement of a relevant student of the University with, for example, the Department or a Hospital and Health Service, may not amount to a 'work experience arrangement' within the meaning of s 4 of the Education (Work Experience) Act 1996, it seems to me that the effect of s 10(3)(a) of the Education (Work Experience) Act 1996 is that the Act would apply to the student and the Department or a Hospital and Health Service as if the student was an employee or worker of the Department or a Hospital and Health Service and they were the employer. That section says nothing about the Act applying to the University, in respect of a relevant student, where the University has made arrangements for the student to be placed with the clinical placement provider.
[63]Furthermore, contrary to the Regulator's submissions, sch 1, pt 2, div 5, item 7 of the Act, by its terms, does not provide that the Act prevails over the Education (Work Experience) Act 1996 to the extent of any inconsistency.
[64]The Regulator submits that s 273 of the Act does not require the work to be performed directly for the PCBU for the charge or levy imposed to be unlawful.
[65]In my view, the accuracy of that submission is the real issue about whether the University has an 'arguable case' on external review.
[66]The Regulator also submits that the University is a person who has directed the performance of the work as part of its course requirements for the students, such that the University was required, by s 44(3) of the Regulation, to provide the fit tested masks without charge to the students in their capacity as workers if not provided by the host PCBU. Section 44 of the Regulation relevantly provides:
44 Provision to workers and use of personal protective equipment
(1) This section applies if personal protective equipment is to be used to minimise a risk to health and safety in relation to work at a workplace under section 36.
(2)The person conducting a business or undertaking who directs the carrying out of work must provide the personal protective equipment to workers at the workplace, unless the personal protective equipment has been provided by another person conducting a business or undertaking.
Maximum penalty - 60 penalty units.
Example -equipment that has been provided by a labour hire company
(3) The person conducting the business or undertaking who directs the carrying out of work must ensure that personal protective equipment provided under subsection (2) is-
(a) selected to minimise risk to health and safety, including by ensuring that the equipment is-
(i) suitable having regard to the nature of the work and any hazard associated with the work; and
(ii) a suitable size and fit and reasonably comfortable for the worker who is to use or wear it;
[67]On the evidence presently before me, the relevant students are not carrying out any work for the University. When the students are undertaking clinical placement, they are, for example, carrying out work for or under the direction of the Department or a Hospital and Health Service. There is no evidence that when the relevant students are undertaking a clinical placement, they are directed in the day to day work they perform in such a clinical placement by the University.
[68]The real question, in my mind, is whether or not, on the proper construction of s 273 of the Act, the prohibition against a person conducting a business or undertaking imposing a levy or charge on a worker for anything done or provided in relation to work health and safety, contemplates that the worker must be carrying out work for the person conducting the business or undertaking. The resolution of this question requires a consideration of the proper construction of s 273 of the Act.
[69]Similarly, the merit of the Regulator's argument about the application of s 44(3) of the Regulation to the University, in the circumstances of students undertaking clinical placements with providers, such as through the Department, depends upon the correct construction of s 44(3) of the Regulation and whether any requirement by the University that the students undertake clinical placement amounts to the University directing the carrying out of work within the meaning of that section.
[70]The plurality consisting of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection[12] summarised the modern approach to statutory construction, namely:
14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[13]
[12] [2017] HCA 34; (2017) 262 CLR 362.
[13] Citations omitted.
[71]Consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.[14] The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[15] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[16] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of relevant provisions.[17]
[14] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] generally agreeing).
[15] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).
[16] Ibid [70].
[17] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).
[72]By reference to these principles of construction, my preliminary view is that the University has an arguable case that Inspector Roberts could not have reasonably believed it was contravening s 273 of the Act on the basis that, properly construed, s 273 imposes the prohibition - not to impose a levy or charge on a worker - on a person conducting a business or undertaking, where the worker is performing work for the business or undertaking.
[73]The reasons I come to this preliminary view are:
(a)first, the definition of 'worker' in s 7 of the Act includes the persons mentioned, but where such a person '… carries out work in any capacity for a person conducting a business or undertaking'; and
(b)secondly, the primary duty of care imposed on a person conducting a business or undertaking, as provided for in s 19(1) of the Act, is to ensure, so far as is reasonably practicable, the health and safety of:
(i) workers engaged, or caused to be engaged by the person conducting the business or undertaking; and
(ii) workers whose activities in carrying out work are influenced or directed by the person (conducting the business or undertaking);
while the workers are at work in the business or undertaking.
[74]Having regard to these provisions of the Act, it seems to me to be arguable that the construction that may best achieve the purpose of s 273 of the Act is one where the prohibition contained in that section is placed on a person conducting a business or undertaking where the worker, as defined within s 7 of the Act, is carrying out work for, or under the influence or direction of, the person conducting the business or undertaking.
[75]Using the example referred to earlier in these reasons, that would be, in respect of a relevant student, the Department or a Hospital and Health Service and not the University.
[76]I have some difficulty with the Regulator's argument which is to the effect that the construction that best achieves the purpose of s 273 of the Act is that the PCBU and the worker can be strangers. Even on the example given by the Regulator, namely a labour hire employee being levied a fee for personal protective equipment by their employer, the employing labour hire firm of that labour hire employee would be caught by s 273 in any event because the employee would be a worker performing work in any capacity for that employer.
[77]Similarly, when considering the Regulator's argument about s 44(3) of the Regulation, where that section provides that a person '… who directs the carrying out of work must ensure that personal protective equipment provided' is suitable, my preliminary view is that the transitive verb 'directs' concerns the giving of instructions about how the work is done, and does not contemplate a direction that a person must go to a place to do work under someone else's direction. Again, using the example referred to earlier in these reasons that would be, in respect of a relevant student, the Department or a Hospital and Health Service and not the University.
[78]Therefore, it is arguable that because the relevant students, when they are undertaking clinical placements, are not carrying out work for or under the influence or direction of the University, the University would not be a person conducting a business or undertaking of the kind contemplated in s 273 of the Act.
[79]For the reasons I have given earlier, my preliminary view is to reject the submission made by the University that providing financial support to students to assist them meet a placement provider's requirements is not imposing a charge or levy, in that such a submission is contrary to the plain facts in the present case. Even if it is the case that some subsidy was provided by the University in respect of the provision of face masks for the purpose of the students undertaking their clinical placement, the University is still charging those students a fee for the fit testing of such masks as part of its co-ordination of fit testing for them.
[80]However, leaving that issue aside, I think that in respect of its third ground, the University has an arguable case on the merits in respect of the question of whether, in the circumstances of the present case, s 273 applies to the University. Indeed, on my preliminary assessment, that case may well be a strong one.
The University's fourth ground
[81]Given Inspector Roberts' evidence, namely, the conversation that he had with Mr Hulme on 14 March 2022 when Inspector Roberts attended the University in response to a complaint he had received, and Mr Hulme's email to Inspector Roberts of the same day, that evidence was, on a purely factual consideration, evidence which was sufficient to induce in the state of mind in a reasonable person, namely, the repository of the power to issue the Improvement Notice (Inspector Roberts) that the University was in breach of s 273 of the Act.[18]
[18] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[82]However, for the reasons I have given above, my preliminary view is that Inspector Roberts' construction of s 273 may have been in error, such that the University has an arguable case on the merits in respect of its review as to whether, in any event, s 273 of the Act applied to the University in the circumstances as they presented themselves to Inspector Roberts.
The University's fifth ground
[83]For the reasons given earlier, the evidence is that Inspector Roberts did make reasonable enquiries of the University prior to him issuing the Improvement Notice, namely his attendance at the University and him seeking information from Mr Hulme.
[84]Again, however, the University has an arguable case as to whether s 273 of the Act did apply to the University in respect of the circumstances discovered by Inspector Roberts after his enquiries.
The balance of convenience and whether an abortive application will ensue
[85]For the reasons I have given, my preliminary view is that the University has an arguable case on external review in that, in the circumstances, it could not be a PCBU of the kind referred to in s 273 of the Act. That arguable case, in my preliminary view, may well be a strong one. The potential strength of that argument on its own is enough, in my view, to warrant the stay being granted.
[86]In any event, leaving that issue aside, I accept the University's argument that the balance of convenience favours the University.
[87]On the evidence of Ms Searing and Ms Tucker, if the fees charged by the University to the students, to the extent they are charged, are stopped, and if the University is required to incur some of the costs for the fit testing of future students, it is unlikely it would be able to recover that money from students if it is ultimately successful before the Commission. There is no evidence of any clear way those costs could be recovered.
[88]On that evidence, the balance of convenience favours the University. Further, the fact that one clinical placement provider may provide such testing free of charge, as deposed to in Inspector Roberts' supplementary affidavit, is not enough, in my view, to tip the balance in favour of the Regulator, given that students are placed with a number of different clinical placement providers.
[89]The above-mentioned consideration, together with the fact that the University has a very arguable case on the merits in respect of its application for external review, persuades me that this is a case where the stay sought by the University should be granted.
Conclusion
[90]The question in this case was whether I should exercise my discretion and order the stay of the decision sought by the University.
[91]For the reasons I have given, I will grant the stay sought.
[92]I will make other directions for the hearing and determination of the University's substantive application.
Orders
[93]I make the following orders:
1. Pursuant to s 229C(1) of the Work Health and Safety Act 2011, the Respondent's internal review decision dated 29 April 2022 ('the internal review decision') is stayed on the condition that the improvement notice (notice I2042426) the subject of the internal review decision is also stayed.
2. Pursuant to s 229C(2)(b) of the Work Health and Safety Act 2011, the stay of the internal review decision and of the improvement notice the subject of the internal review decision (notice I2042426), will operate until the Applicant's application for the external review of the internal review decision is heard and determined by the Commission.
3. The costs of the Applicant's application for a stay are reserved.
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