Workplace Health and Safety Law in Australia Update No 2

Transcription

1 University of Newcastle - Australia From the SelectedWorks of Neil J Foster October, 2012 Workplace Health and Safety Law in Australia Update No 2 Neil J Foster Available at:

2 UPDATES TO WORKPLACE HEALTH AND SAFETY LAW IN AUSTRALIA (2012) Update No 2: Case dealing with the new WHSA 2011 One of the problems we face in reading the Work Health and Safety Act 2011 is that there have been so far very few cases interpreting the provisions to give us an idea of how the courts will approach the Act. This note reports on the first case to give substantive consideration to the provisions of the new Act. The case The case is Essential Energy (ACN ) and WorkCover Authority of New South Wales [2012] NSWIRComm 83 (3 August 20). One issue the court was dealing with was the meaning of the word worker, which of course is defined in s 7 of the WHSA (see WHSLA (2012) para 7.33 at p 360). The other, perhaps not so apparent but as we will see quite problematic, was the interpretation of s 19. Remember the duty of the business operator is not confined by the definition of worker (while the term is used in s 19(1), most duties of business operators, in ss 19(2)-26, apply in relation to persons generally.) However, some tricky questions may still arise as to who is a worker. In Essential Energy the company Essential Energy (EE) were one of the authorised electricity providers for NSW, and they were the subject of an improvement notice under s 191 WHSA in relation to a risk created to someone. (Incidentally, this is the reason that the court was considering the legislation- that an application had to be made in relation to the use of the Act in investigation now, as opposed to in relation to a prior incident of some sort. Most prosecutions heard by the courts for the next year or so will relate to incidents occurring before 1 Jan 2012, and hence will be ruling on matters arising under the former OHS Act 2000 or equivalent in other jurisdictions.) EE had authorised a company called Ronin Pty Ltd, which was authorised to do commercial electrical connection work, to have access to part of the network located between two existing power poles (called poles 149 and 150 in the case), to instal an additional connection. The authority signed off by EE regarded the line between the poles as the work area, which EE undertook to de-energise while work was taking place. But one of Ronin s employees, Mr Sweeney, climbed pole 149 to disentangle some wires and received an electric shock, as two wires coming into pole 149 from the other side had not been de-energised. One issue in the case was whether Mr Sweeney was a worker of EE, for the purpose of a possible s 19(1) offence committed by that company. He was clearly not their employee. But WorkCover argued that he fell within s 7(1)(c) as an employee of a contractor. The judge, Backman J, ruled in these interlocutory proceedings that this was arguable- both that he was a worker and that under s 19(1) he was at work in [EE s] business or undertaking. [23] The applicant contends that Mr Larobina erred in finding that Mr Sweeney was a worker of the applicant. In the Court's view, given the material available, it was open to conclude that Mr Sweeney was a "relevant worker" under s 19 of the Act. Under s 7 of the WHS Act, "worker" is broadly defined. It includes employees, contractors, subcontractors, outworkers and volunteers who "carry out work in any capacity for a person conducting a business or undertaking". The Court also agrees with the respondent's contentions on the issue of whether Ronin was carrying out work as part of the applicant's undertaking. It also appears to the Court on the material available that Mr Sweeney could fall within the wider definition of "other persons" to whom a duty is owed in accordance with the terms of s 19(2), on the basis that "other persons" includes persons put at risk from work carried out as part of the conduct of a person's business or undertaking. {emphasis added}

3 With respect, the second of these three highlighted propositions seems doubtfulit seems to me that Mr Sweeney, while falling within the definition of worker in s 7, was at work in his own employer s business, which required a permit from EE, but was not really working in EE s business. The judge also noted that there would also be a possible liability under s 19(2) which refers to other persons - one could with more justification say that it was part of EE s business to give permission to access the network, and Mr Sweeney was put at risk by the way that permission was given (if EE did not have clear procedures indicating where the power was present or not in adjacent areas.) Hence under s 19(2) one could say that Mr Sweeney s health and safety had been put at risk from work carried out [the giving of permission] as part of the conduct of [EE s] business or undertaking. In the end, however, the judge ordered a temporary stay of the improvement notice that had been placed onto EE by the WorkCover (which required them to ensure that all possible live areas adjacent to the area covered by the access permit have been identified and brought to the attention of all concerned - see [5])- so the liability of EE for the incident will now be determined at a further trial in the future. Comment on the implications of the case This case raises an odd feature about the extended definition of worker and the way it interacts with other provisions of the Act: if one could argue that any liability of the PCBU did not exist under s 19(1), then would that mean that any injury to those persons could not be prosecuted under s 19(2)? In the Essential Energy case, if one took the view that the contractor s employee was a worker, as seems to be clear under s 7, but (as I have argued above) he was not at work in the business or undertaking of EE, then s 19(1) would not apply. If he was in fact injured by some activity of the business, one would want s 19(2) to apply. But might it not then be argued that s 19(2) could not be applicable? This would flow from the fact that under s 19(2) he would not be an other person, interpreting the phrase other person to mean other than a worker referred to in clause 19(1). If that were so, then the extended definition of worker in s 7 may have resulted in a shrinking of obligations to those who are not employees! This seems contrary to what most people would have thought. It would, not unimportantly, also be contrary to the decision of Backman J in Essential Energy that s 19(2) could have provided another possible ground for liability (and hence I might be wrong!). In the EE case one could perhaps respond that in any event s 19(1)(b) would have been applicable- that the worker s activities were influenced by EE (since they had to draft the relevant permit); but there may be other cases which leave loopholes in coverage. And in any event, as noted above, it seems unlikely that, in terms of the final clause in s 19(1), he was at work in EE s undertaking. It should be noted that the above analysis is only possible if my suggested meaning of the phrase other person in s 19(2) is adopted- see WHSLA (2012) para 7.46, first sub-para where I argue for the meaning non-workers to be given to the phrase, especially in light of the way that the legislation has been previously structured. Let me explain more carefully how I see the issue arising. 1. The word "other" is a word of contrast; it means that this group is different to some previously mentioned group or individual. So the key issue is, which previously mentioned group of persons, or individual, are we referring to? 2. In the immediate context of the sentence set out in s 19(2), the previously mentioned "person" is the "person conducting the business or undertaking". So the word "other" could be taken to mean "anyone other than the PCBU". That would mean that the PCBU has a duty to see that the "health and safety of

4 [anyone else in the world] is not put at risk from work carried out as part of the conduct of the business or undertaking." That would not be an irrational obligation. That is the interpretation suggested by Mr Tooma in his commentary: Since workers are persons, on one view, every breach of s 19(1) could be prosecuted as a breach of s 19(2). 1 But it seems to me that there are a couple of problems with that interpretation. a. The most obvious problem is that it effectively makes s 19(1) redundant. Why specify a limited duty to "workers" (carefully conditioned with phrases such as "while the workers are at work in the business or undertaking") when you have what seems to be a broader duty to everyone else in the world, which will always be satisfied by workers? It has to be said that giving an interpretation to s 19(2) which would make s 19(1) useless, is not a very attractive option, and one that a court is likely to not be happy with. b. Some distinction might be drawn between the nature of the obligation in s 19(1) as opposed to that in s 19(2), so as not to make s 19(1) useless. One could try and argue that the ss(1) duty to "ensure health and safety" is much stricter than the ss(2) duty to "ensure...that health and safety... is not put at risk". I seem to recall (I can't put my finger on it at the moment) that Mr Tooma argues this at some point. But I don't think there is a sensible distinction to be drawn here. The words "ensure health and safety" seem to me to obviously imply "not allow creation of risks to health and safety". (It would be interesting to see if any support from the National Review could be found for the view that a lesser obligation should be owed to non-workers than to workers.) c. The other reason for suggesting that s 19(2) is meant to be dealing with a different (not overlapping) group of persons from s 19(1) is the historical development of the provision. The history of OHS legislation in NSW shows that such legislation has always created different obligations for employers in relation to employees on the one hand, and non-employees on the other hand. (See OHS Act 1983 ss 15, 16; OHS Act 2000 ss 8, 9.) I am pretty sure that this type of double-barrelled obligation structure is what the National Review had in mind. As a matter of statutory interpretation one is allowed to take into account, in resolving ambiguity, comments in law reform documents that led to the legislation in question. 3. So the other way of reading the word "others" in s 19(2) is to say that the group of persons with whom the contrast is drawn is not the PCBU at the beginning of ss(2), but the group of persons referred to in the immediately preceding ss(1), ie those "workers" referred to in paras (a) and (b) of s 19(1). They are: "(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". I take the view that this makes sense of s 19, allowing the differently worded duties in subsections (1) and (2) to operate on different groups of persons, and would be consistent with the history of the legislation. 1 M Tooma, Tooma s Annotated Work Health and Safety Act 2011 (Lawbook Co, Pyrmont, 2012) at [19.70], p 49.

5 However, while this views seems logical, it does create the problem I have identified above: that there may be a gap in that some people whose safety is not protected by ss19(1), will also not be protected by ss19(2). It remains to be seen which view the courts will ultimately take. At the moment it has to be conceded that the implication of Backman J s comments noted above are that Mr Tooma is correct (in that his Honour was prepared to apply both s 19(1) and s 19(2) to Mr Sweeney.) However, it is important to note that this was only an interlocutory decision which was not finally determining rights and liabilities, and it seems likely his Honour did not have the benefit of extensive argument on the point. If my view is right, there is a problem. What should be done to "fix" this bit of the legislation? I would argue that Parliament needs to remove the confusing phrase "other persons" and replace it by a more precise one. Perhaps the phrase "persons who are not workers as described in sub-section (1)(a) and (b), or who are not at work in the business or undertaking of the PCBU". That way if the final clause of sub-section(1) is not satisfied, there will still be an obligation under s 19(2). In fact, on further reflection, a simpler way of drawing the distinction between ss(1) and ss(2) would be to make it hinge on the final phrase. The obligation under ss(2) would simply extend to persons who are not at work in the business or undertaking of the PCBU. The only gap here would be if there were any people who are not workers referred to in ss(1) who would be at work in the business etc. But surely someone who was in any sense at work in the business would be picked up by one of the paragraphs of the section 7 definition of worker? Even if they were at work but were not being paid, they would be a volunteer. The other way around the problem is that a court might choose to say that the final phrase in ss(1), "while at work...", should be read as a part of the definition of the "persons" who are dealt with in that subsection. (This is not the natural way of reading it- it seems more like a circumstantial description of when the offence is committed, rather than a description of persons- but a court might take the view that this would be one way of resolving the problem here.) That would neatly mean that there was no gap between ss(1) and ss(2), that someone would either fall in ss(1) or else, if they did not (including due to the circumstances of their work on the day), then a risk to their harm could be dealt with under ss(2). All in all, in light of the need to interpret legislation to conform to the aims of the drafters, this would seem to be the preferable option. A further final point to note flowing from the Essential Energy decision- it nicely illustrates the points made in the book about the courts taking into account the objects of the legislation in interpretation (see para 7.26). Backman J commented at [47]: The Court agrees with the respondent that the public interest is a factor of particular significance in the context of legislation primarily focused on achieving safety in the workplace. If anything were needed to support this proposition it is found in s 3 of the WHS Act which sets out the objects of the Act Neil Foster 6 October 2012