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Federal Court of Australia - Full Court |
Last Updated: 1 September 2009
FEDERAL COURT OF AUSTRALIA
Telstra Corporation Ltd v Smith [2009] FCAFC 103
ADMINISTRATIVE LAW –
investigation and reporting under Occupational Health and Safety Act 1991
(Cth) s 53 – whether the premises was a "workplace" – meaning of a
workplace under the Act – the extent of procedural fairness
required in
respect of an investigation or report under s 53 – whether the
investigator can conclude in the investigation report a finding of breach under
s 17 – sufficient grounds to find a breach of duty of employers to third
parties
Acts Interpretation Act
1901 (Cth) 25D
Administrative Decisions (Judicial Review) Act 1977
(Cth) s 5, s 6
Judiciary Act 1903 (Cth) s 39B
Safety,
Rehabilitation and Compensation Act 1988 (Cth) ss 68, 69, 89A,
89B
Occupational Health and Safety Act 1991 (Cth) ss 3, 5, 12, 16, 17,
40, 41, 42, 43, 44, 45, 45A, 46, 47, 48, 53, 68, 75, Schedule 1, Div 2 Pt
4
Occupational Health and Safety Act 1983 (NSW)
Ainsworth v Criminal Justice Commission
[1992] HCA 10; (1992) 175 CLR 564 cited
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596
cited
SZBEL v Minister for Immigration and Multicultural and Indigenous
Affairs [2006] HCA 63; (2006) 228 CLR 152 cited
TELSTRA CORPORATION
LTD v WILLIAM SMITH, COMCARE and SAFETY REHABILITATION AND COMPENSATION
COMMISSION
VID 34 of 2009
SPENDER,
LANDER AND FLICK JJ
31 AUGUST 2009
MELBOURNE
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AND:
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THE COURT ORDERS THAT:
2. The appellant pay the respondents’ costs of the appeal as agreed or
taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using eSearch on the
Court’s website.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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TELSTRA CORPORATION LTD
Appellant |
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AND:
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WILLIAM SMITH
First Respondent COMCARE Second Respondent SAFETY REHABILITATION AND COMPENSATION COMMISSION Third Respondent |
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JUDGES:
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SPENDER, LANDER AND FLICK JJ
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DATE:
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31 AUGUST 2009
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PLACE:
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MELBOURNE
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REASONS FOR JUDGMENT
1 This is an appeal from an order of a judge of this Court dismissing the appellant’s application for judicial review made pursuant to ss 39B(1) and 39B(1A)(c) of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to decisions and conduct of the first respondent who conducted an investigation and made a decision to prepare a report under s 53 of the Occupational Health and Safety Act 1991 (Cth) (the OH&S Act) that the appellant had breached s 17 of the OH&S Act, and the decision of the second and third respondents to accept the report.
2 The appellant is a corporation which carries on, inter alia, the supply of telecommunications.
3 The first respondent, Mr William Smith, is an employee of the second respondent and an investigator appointed under s 40(2) of the OH&S Act. That subsection provides that Comcare can appoint a member of the staff of Comcare or a person having knowledge of, and experience in, matters relating to occupational health and safety to be an investigator.
4 The second respondent (Comcare) is a body corporate established by s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Its functions are identified in s 69 of the SRC Act but need not be identified in a consideration of this appeal.
5 The third respondent (the Safety Rehabilitation and Compensation Commission (SRCC)) is a body constituted by s 89A of the SRC Act which has the function, inter alia, of ensuring that as far as practicable there is equity of outcome resulting from administrative practices and procedures used by Comcare and a licensee in the performance of their respective functions: s 89B of the SRC Act.
6 Section 12 of the OH&S Act provides for the additional functions conferred on the SRCC. The relevant functions on this appeal are:
(a) to ensure, in accordance with this Act and the regulations, that the obligations imposed by or under this Act are complied with;
(b) to advise employers, employees or contractors, either on its own initiative or on request, on occupational health and safety matters affecting such employers, employees or contractors (including the matters that should be covered by health and safety management arrangements);
(c) to collect, interpret and report information relating to occupational health and safety in the employment of employees;
(d) to formulate policies and strategies relating to the occupational health and safety of employees;
7 Section 3 of the OH&S Act sets out the objectives of that Act:
(a) to secure the health, safety and welfare at work of employees of the Commonwealth, of Commonwealth authorities and of non-Commonwealth licensees; and
(b) to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and
(c) to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and
(d) to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and
(e) to foster a co-operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and
(f) to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and
(g) to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.
8 An "employer" is defined in s 5 to include a Commonwealth authority and a non-Commonwealth licensee.
9 The appellant is an employer as defined by s 5 of the OH&S Act and at the time of the incident which led to these proceedings was specified as a government business enterprise in Schedule 1 of the OH&S Act. It was not in dispute that the appellant was a non-Commonwealth licensee. The appellant therefore was, at the relevant time, subject to the OH&S Act.
10 The OH&S Act imposes obligations on an employer, both with respect to the employer’s employees and persons not employed by the employer.
11 Section 16(1) addresses an employer’s paramount duty in respect to its employees:
An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).
12 Section 17 addresses an employer’s duties in relation to third parties. That section provides:
An employer must take all reasonably practicable steps to ensure that persons at or near a workplace under the employer’s control who are not the employer’s employees or contractors are not exposed to risk to their health or safety arising from the conduct of the employer’s undertaking.Note: An employer who breaches section 17 may be subject to civil action or a criminal prosecution (see Schedule 2).
13 The appellant and the respondents agreed upon the relevant facts which were incorporated in a statement of agreed facts. The facts which follow are taken from that statement.
14 On 14 November 2006 at 11.15 am Mrs Deborah Kirtley was carrying her five month old child and walking along Wandana Drive, Wandana Heights in Victoria. She stepped onto a "pit lid" on the footpath. The pit lid was owned by the appellant. The pit lid collapsed under her weight as a result of which she fell into the pit and her daughter struck her head on the concrete edging surrounding the pit.
15 Mrs Kirtley was not injured but her daughter required medical attention for a bruise to the head and, as a result, was admitted to the Geelong Hospital for overnight observation.
16 At the relevant time, no employee or contractor of the appellant was working at or near the pit, and the most recent time that the pit may have been accessed before the incident was on 8 September 2006 when a contractor accessed the pit to locate a fault.
17 On 15 November 2006 at 1.44 pm Telstra notified Comcare by facsimile transmission of the incident.
18 The second respondent appointed the first respondent to carry out an investigation into the incident of 14 November 2006.
19 On 16 November 2006 the appellant emailed Comcare requesting that the incident notification of 15 November 2006 be "withdrawn" on the basis that it was "reported in error". The appellant apparently took the view on 16 November 2006 that the incident did not occur at a workplace.
20 On 21 November 2006 Comcare advised the appellant that Comcare had commenced a reactive investigation into the incident and that the first respondent had been appointed the investigator. The appellant was advised that the first respondent would examine Telstra’s compliance with s 17 of the OH&S Act.
21 Section 41(1) of the OH&S Act empowers investigators of Comcare to conduct investigations:
(a) to ascertain whether the requirements of, or any requirements properly made under, the Act or the regulations are being complied with; or(b) concerning a breach or possible breach of this Act or the regulations; or
(c) concerning an accident or dangerous occurrence that has happened in the performing of work for an employer.
22 In correspondence exchanged between the appellant and Comcare, the appellant asserted that the incident did not occur at a "workplace" within the meaning of the OH&S Act and, in those circumstances, neither the first nor the second respondent had power to investigate the incident.
23 Comcare did not accept that its powers to appoint an investigator were curtailed by the appellant’s purported withdrawal of the notification. It was accepted by the parties that if this incident occurred at a workplace the appellant did have an obligation to report the incident to Comcare.
24 The first respondent sought production of documents from the appellant pursuant to s 43 of the OH&S Act. That section empowers an investigator to require the body into which the inquiry is being held and its employers to give the investigator reasonable assistance and to answer any questions put by the investigator, and to give to the investigator any documents requested by the investigator. The appellant provided various documents but under protest. The appellant made submissions in respect to its contention that the pit into which Mrs Kirtley fell was not a workplace. It also made submissions in respect to its system for the repair/replace/maintenance system for pits and manholes.
25 In the appellant’s last relevant communication with the first respondent, it asked the first respondent that in the event he intended to continue with the investigation that he provide Telstra with at least 14 days notice of any report or recommendation that follows from the report.
26 On 26 February 2008 the Manager, Investigating, Planning and Support Section Vic & Tas, Assurance Branch of Comcare, wrote to the Managing Director of the appellant, Mr Sol Trujillo, enclosing a copy of the investigation report of the first respondent. The Managing Director was asked to respond to the recommendations contained in the report by Monday, 17 March 2008 in accordance with s 53(4) of the OH&S Act. He was asked to include a plan "outlining the action(s) taken and/or proposed in relation to the recommendations and the expected date(s) for completion of each action". The documents do not contain Mr Trujillo’s reply.
27 The investigation report referred to in the letter of 26 February 2008 is a document headed "Investigation Summary Report". It first identifies the event into which the investigation was made, i.e. Mrs Kirtley’s and her baby’s fall into the pit. It then identifies the investigation process and the materials obtained and reviewed.
28 The investigator spoke to and obtained statements from Mrs Kirtley and her husband. He viewed the site where the incident occurred and took photographs of it.
29 The first respondent records that he "observed that the pit and pit lid had undergone repairs such that they appeared to no longer pose a risk to health and safety".
30 He identified the documents which he had requested from the appellant and those which had been provided and analysed the contents of those documents. He noted that nine complaints had been reported in relation to incidents of persons falling into the appellant’s pits in the Geelong area to the Corporation (City) of Greater Geelong. He visited those sites to determine whether or not the pit lids had been repaired and identified those that had not been repaired. He said in his report:
16. I ascertained, after reviewing the above documents, that Telstra does not have any policies or procedures relevant to the scheduled maintenance, servicing and/or repair of Telstra pits and pit lids.
17. On 20 September 2007, following a discussion with Ms Jennifer SIRCA (Telstra Legal Counsel, Human Resources Legal Services) and Ms Nicole FAUVRELLE (Senior Associate, Freehills Solicitors), I confirmed that Telstra does not have any policies or procedures relevant to the scheduled maintenance, servicing and/or repair of Telstra pits and pit lids.
18. I further determined as part of the above that Telstra:
i. relies on members of the public (directly or though local councils) to report damaged pits and/or pit lids to Telstra; and
ii. (has a system in place whereby its field staff can report damaged pits or pit lids in accordance with the procedures contained in Telstra’s National CAN Defects Reporting & Restoration CNI / LMT process.
31 The first respondent made the following findings:
a) The incident is a ‘dangerous occurrence’ as defined by section 5 of the Act and is therefore notifiable to Comcare under section 68 of the Act and Regulation 37A of the Occupational Health and Safety (Safety Arrangements) Regulations 1994 (‘SA Regulations’).
b) The incident was reported to Comcare within the timeframe prescribed by the Act and SA Regulations. Telstra subsequently attempted to withdraw the notification advising Comcare that the incident was incorrectly reported and that it was not a ‘notifiable’ incident.
c) Telstra is an ‘employer’ as defined by section 5 of the Act and at the time of the incident was specified as a ‘government business enterprise’ in Schedule 1 of the Act.
d) The involved pit is a ‘Commonwealth premises’ in which Telstra employees and contractors work. It is owned by Telstra and is a ‘workplace’ as defined by section 5 of the Act.
e) The involved pit was under the control of Telstra and the risk to Ms KIRTLEY’s health and safety (and that of Ms KIRTLEY’s daughter) arose from the conduct of Telstra’s undertaking.
f) As part of this, the involved pit is a point for accessing underground Telstra communications infrastructure and is used by Telstra employees and contractors to undertake maintenance and inspection activities.
g) Shortly after the incident, Mr KIRTLEY telephoned Telstra and the COGG to notify both parties of the damaged pit. Telstra responded to Mr KIRTLEY’s notification by undertaking pit and pit lid repairs within twenty-four hours.
h) The COGG regularly receives information from members of the public in relation to damaged and/or faulty Telstra pits and pit lids. The COGG refers the information it receives to Telstra and, as part of the process, requests that repairs be undertaken.
i) Nine incidents involving persons falling into or over Telstra pits and/or pit lids were reported to the COGG between 1 December 2005 and 30 November 2006. Twelve additional incidents were reported to the COGG in relation to broken, damaged and/or dangerous pits and pit lids during the same time period. All of the incidents were reported to Telstra by the COGG.
j) Other than the incident involving Ms KIRTLEY, Telstra did not notify Comcare of any of the incidents reported to the COGG between 1 December 2005 and 30 November 2006.
k) As at 13 December 2006, five of the nine sites where persons had fallen into or over Telstra pits and/or pit lids had not been repaired. Three of the pits/pit lids were awaiting repairs and had protective barriers placed around them.
l) As at 4 April 2007, two of the five ‘damaged’ pits/pit lids had still not been repaired or replaced.
m) After reviewing the information provided by Telstra, I was unable to identify any material to demonstrate that Telstra operates a system of scheduled maintenance, servicing, inspection and/or repair specific to the maintaining the condition of its pits and pit lids.
n) As part of this, Telstra relies solely on feedback provided by members of the public (either directly or through local councils), and Telstra in-field staff to identify damaged pits and pit lids requiring repair.
o) Telstra advised Comcare that a scheduled inspection and maintenance program to manage the condition of its pits and pit lids would cost tens of millions of dollars and not overcome the need for reactive repairs.
32 He reached the following conclusion:
21. Based on the above, I am of the opinion that Telstra breached section 17 of the Act in relation to incident [sic] involving Ms KIRTLEY and her daughter.
33 He gave as his reasons:
(a) A member of the public, who was not an employee or contractor of Telstra, was injured at a workplace owned by Telstra and under its control.
(b) Telstra failed to take all reasonably practicable steps to ensure that persons (including members of the public) at or near Telstra pits and pit lids were not exposed to health and safety risks as a result of its undertaking.
34 He made the following recommendations:
1. Telstra must notify Comcare of all accidents and dangerous occurrences involving pits/pit lids and third parties in accordance with the requirements of the Act and SA Regulations.
2. Telstra must take all reasonably practicable steps [to] ensure that the system which is in place to identify pits and pit lids requiring maintenance, servicing and repair is further developed and implemented, such that persons at or near Telstra pits are not exposed to risk to their health or safety arising from the conduct of Telstra’s undertaking.
3. As part of Recommendation 2, Telstra must ensure that the above system facilitates timely responses (by Telstra) in relation to reports they receive of damaged pits and pit lids.
35 The appellant sought judicial review to quash the report and findings of the first respondent, and an order setting aside the second respondent’s requirement that the appellant respond to that report. Four grounds were raised before the primary judge.
36 First, the appellant argued that the pit lid and pit into which Mrs Kirtley and her child fell and in which employees of the appellant work from time to time, was not a "workplace" for the purpose of s 17 of the OH&S Act.
37 Secondly, that the report made by the first respondent under s 53 of the OH&S Act including his conclusion that the appellant had breached s 17 of that Act involved a denial of procedural fairness, vis a vis the appellant.
38 Thirdly, the first respondent had failed to comply with s 53(2) of the OH&S Act by failing to include reasons for the conclusions in his report.
39 Fourthly, the first respondent was not entitled to conclude in his report that the appellant had breached s 17.
40 The primary judge found that the pit lid and pit was a workplace for the purposes of the Act. The pit was a premise in which employees might work because it was used for the purpose of accessing and maintaining telecommunications infrastructure. The pit lid, he said, was part of that pit. It did not cease to be a workplace because at the particular time the appellant’s employees or contractors were not working in the pit.
41 The primary judge rejected the appellant’s second ground and held that in the context of the OH&S Act the appellant had been accorded procedural fairness. He found that the appellant had a clear appreciation of the issues involved and had been given adequate opportunity to comment during the process. It was not necessary, he found, that the appellant be given the opportunity to comment on the provisional conclusion.
42 The primary judge rejected the third contention and held that the obligation to give reasons has to be assessed in light of the statutory context in which the obligation arises. Whilst in this case s 53(2) of the OH&S Act obliged the investigator to give reasons for the investigator’s conclusions, he found that the first respondent had compiled a report which set out his conclusions, the reasons for the conclusions and the findings of fact which the first respondent considered material, and the evidence on which those findings were based. In those circumstances, the primary judge found that the report complied with s 53(2) of the OH&S Act.
43 The primary judge rejected the final contention made by the appellant holding that the first respondent was entitled to conclude, as he did, that the appellant had breached s 17 of the OH&S Act, and include that conclusion in his report. The primary judge relied upon s 41 of the OH&S Act which empowers the investigator to conduct the investigation and s 53 of the OH&S Act which requires the investigator to prepare a written report relating to the investigation. The primary judge found that because the investigator has an obligation to prepare a written report, the investigator must necessarily include in that report any conclusion that the investigator has made in relation to a breach or possible breach of the OH&S Act. He found that there was sufficient evidence for the first respondent to reach the conclusion that the appellant had breached s 17 of the OH&S Act.
44 In its notice of appeal the appellant has taken issue with each of the conclusions reached by the primary judge and seeks to have each and every conclusion reversed on this appeal. The grounds of appeal are:
1. The learned Judge erred in finding that the incident described in paragraph 1 of the Reasons for Judgment occurred at a workplace of the Appellant within the meaning of the Occupational Health and Safety Act 1991 (Cth) ("OHSA").
2. The learned Judge erred in finding that the Appellant had not been denied procedural fairness in respect of the purported report under s.53(1) of the OHSA ("the report").
3. The learned Judge erred in finding that s.53(2) of the OHSA empowered the First Respondent to include a conclusion in the report that the Appellant had breached s.17 of the OHSA.
4. The learned Judge erred in finding that the report complied with s.53(2) of the OHSA, and in particular erred in finding that the report included reasons, sufficient to comply with s 53(2) of the OHSA, for the conclusion that the Appellant had breached s.17 of the OHSA.
5. The learned Judge erred in finding that there was sufficient material before the First Respondent to enable him to be satisfied that the Appellant had breached s.17 of the OHSA.
6. The learned Judge erred in finding that the First Respondent considered
(a) at all,
(b) properly, or
(c) according to law,
the individual integers or essential elements required to be established before a conclusion of a breach of s.17 of the OHSA could be reached.
7. The learned Judge erred in refusing to quash the purported report under s.53(1) of the OHSA or alternatively in refusing to quash the conclusion that the Appellant had breached s.17 of the OHSA, and in refusing to grant the declaration sought in the application.
Ground 1
45 The principal issue on this appeal was whether the pit lid, or indeed the pit, was a "workplace" within the meaning of ss 5 and 17 of the OH&S Act. Section 17, which is set out at [12] of these reasons, imposes a statutory obligation on an employer to take all reasonably practicable steps to ensure that persons, other than employees, who are near a workplace are not exposed to risk to their health or safety. The term "workplace" is defined in s 5 of the OH&S Act, relevantly, to mean:
However, workplace does not include any part of premises that is primarily used as a private dwelling.(a) ...
(b) ...
(c) any non-Commonwealth licensee premises of a non-Commonwealth licensee in which non-Commonwealth licensee employees, or non-Commonwealth licensee contractors, of the licensee work.
46 The term "workplace" is used in s 17 and extensively throughout the OH&S Act. Division 2 of Part 4 of the OH&S Act gives extensive powers to an investigator appointed to conduct an investigation, to search a workplace (s 42), to take possession of plant from a workplace for the purpose of examination and testing (s 44), to allow an inspection at a workplace (s 45) and to direct that a workplace be not disturbed (s 45A). Of course, "workplace" must have the same meaning in those sections as it has when used in s 17.
47 The appellant contended that before "a place or premises can be a workplace, there must be a temporal connection between the place or premises and the doing of work". It was contended that unless the OH&S Act were given that construction any place where work was at one time performed would always remain a workplace.
48 The respondent argued that to give "workplace" that meaning would require that the words "in which Commonwealth employees are, at the time of an incident/risk arising working" be read into the definition, which would be to give the meaning of "workplace" a meaning apart from its ordinary meaning.
49 There is no need to give workplace a meaning which requires a temporal connection between the place or premises and the work to be performed. Such a meaning would be inconsistent with the purpose of the OH&S Act which, relevantly, is to protect persons apart from employees who are near a workplace. If the appellant’s construction were correct, such persons would only be entitled to protection whilst near a workplace upon which work was being performed. That is not the intention or purpose of the OH&S Act. The purpose of s 17 is to protect persons who are not employed by the employer. That purpose would be defeated if that protection was limited to any time when the employer’s employees were working at the workplace. The appellant’s construction would limit the circumstances in which a person was entitled to protection. There is no reason to limit a workplace to a place where work is being performed at any particular time. A workplace is a place where work is performed from time to time.
50 Thus, a shearing shed, used for shearing only during the few weeks of the shearing season, does not cease to be a workplace outside of the shearing season, and a department store does not cease to be a workplace when it is closed overnight.
51 The respondents submitted, correctly in our opinion, that if the appellant’s construction were right the concluding words in s 17, "arising from the conduct of the employer’s undertaking", would be otiose. If a workplace was only a place where work was being actually carried out, that place would always be a place where that conduct is the effectuation of the employer’s undertaking and those words would have no work to do.
52 We also agree with the respondent’s contention that if "workplace" had the meaning contended for by the appellant, the extensive powers given an investigator in Division 2 of Part 4 could be thwarted by an employee removing all employees from the workplace. The appellant’s construction could lead to an impractical result.
53 The employer’s liability under s 17 is limited by the words "a workplace under the employer’s control". If Parliament had intended to limit liability in the way contended by the appellant it would have included words to the effect, "a workplace at which the employer’s employees are working".
54 The appellant submitted that the object of the OH&S Act in s 3(b) supports the construction for which it contended. We do not agree. We do not think that object, which is to protect persons at or near workplaces from risks arising out of the activities of employees, assists in the construction. The general object of the OH&S Act is to promote the health, safety and welfare of all persons and to guard against risks to health, safety and welfare arising from activities in employment.
55 There is nothing in s 3(b) which suggests that those risks are only addressed by the legislation whilst the employees are at work. Indeed, the whole scheme of the OH&S Act is otherwise. There is no reason to think that an employer is not liable under s 17 if an employee creates a dangerous situation in the workplace whilst at work and the non-employee is injured after the employee has ceased work. Section 3(b) would only assist if it were to read "... arising out of activities whilst the employees are working".
56 On this appeal the Court need only determine whether a pit and a pit lid are together, or independently, a workplace. In our opinion, they are both a workplace. A pit is designed for the very purpose of enabling the appellant’s employees to carry out work on the appellant’s equipment. A pit has the character of a workplace and, indeed, no other character. A pit lid is designed to protect people from falling into a pit. It is part of the workplace.
57 The appellant argued that when the pit is not being accessed the pit lid operates as a section of the footpath and, as such, is not solely a workplace. Whilst that is so, that conclusion does not mean it is not a workplace. It can be both a workplace and a section of the footpath.
58 The appellant also argued that because it is part of the footpath it does not have exclusive access and control over the pit lid and therefore is not a workplace. That cannot be right. Whether a place or premises is a workplace is not defined by whether the employer has exclusive control of the place or premises.
59 The appellant took the Court to decisions of the New South Wales Industrial Commission and the Industrial Court of New South Wales on the construction of the Occupational Health and Safety Act 1983 (NSW) in support of its contention that a Telstra pit and pit lid is not a workplace. The legislation considered in those cases referred to is not in pari materia to the OH&S Act and we do not think that any of those decisions assist in determining the issues on this appeal.
60 The first ground of appeal cannot be sustained.
Ground 2
61 There was no dispute that the appellant was entitled to be afforded procedural fairness in the preparation of a report under s 53 of the OH&S Act. The question was whether the obligation had been met.
62 Whilst the appellant has disputed the first respondent’s jurisdiction to conduct the investigation because the pit lid was not a workplace, the appellant contended that because an adverse finding that it had breached s 17 of the OH&S Act might be made, it was entitled to be put on notice of the possible findings and conclusions to which the first respondent might come.
63 The duty to accord a person procedural fairness arises where a decision maker exercises a power that might prejudice the person’s rights, interests or legitimate expectations: Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576. A party’s reputation may be enough to require a decision maker to accord the party procedural fairness prior to making a decision or, in this case, publishing a report: Annetts v McCann [1990] HCA 57; 170 CLR 596 at 608. The appellant contended that the duty was imposed in this case because of the need in part to protect the appellant’s reputation.
64 The duty to accord a party procedural fairness rule in any given case must be ascertained by reference to the statutory context under which the decision maker exercises the statutory power. The particular statutory framework will inform the content of the duty to accord procedural fairness. The particular content will also be determined by the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26].
65 It is necessary to examine the OH&S Act in more detail.
66 Section 41 of the OH&S Act empowers an investigator employed by Comcare (which the first respondent was) to conduct an investigation (s 41(1)(b)) concerning a breach or possible breach of this Act or the regulations. We have already mentioned that ss 42 to 47 give the investigator extensive powers to conduct the investigation.
67 Section 47 gives the investigator power to issue an improvement notice. Section 47 relevantly provides:
(1) Where, having conducted an investigation, an investigator forms the opinion that a person:
(a) is breaching a provision of this Act or the regulations; or
(b) has breached a provision of this Act or the regulations and is likely to breach that provision again;
... (3) The notice must:the investigator may issue an improvement notice, in writing, to the person (in this section called the responsible person).
... (8) Where the notice is issued to an employer, the employer must:(a) specify the breach of the provision of this Act or the regulations that, in the investigator’s opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and
(b) specify a period, being a period that is, in the investigator’s opinion, reasonable, within which the responsible person is to take the action necessary to prevent any further breach of the provision or to prevent the likely breach of the provision, as the case may be.
(a) give a copy of the notice to each health and safety representative for a designated work group of the employer’s employees performing work that is affected by the notice; and
(b) cause a copy of the notice to be displayed, until the notice has expired, been revoked or been varied, in a prominent place at or near each workplace at which that work is being performed.
68 The investigator cannot issue an improvement notice unless the investigator first forms the opinion that the employer has breached, or is breaching, or is likely to breach, the OH&S Act or the regulations. The improvement notice must specify the breach of the provision of the OH&S Act or the regulations that, in the investigator’s opinion, has been, is, or is likely to be, breached and must set out the investigator’s reasons for that opinion.
69 If an improvement notice is issued, the employer must comply with s 47(8). The purpose of s 47(8) is to bring the notice to the attention of the relevant health and safety representatives and to the employer’s employees.
70 An employer may appeal to the Australian Industrial Relations Commission against any exercise of power by an investigator under s 44 or s 45 or s 47 to issue, render or vary an improvement notice: s 48.
71 Section 53 requires the investigator to prepare a written report relating to the investigation and give the report to the SRCC. Section 53 provides:
(1) Where an investigator has conducted an investigation, the investigator must, as soon as is reasonably practicable, prepare a written report relating to the investigation and give the report to the Commission.
(2) The report must include:
(a) the investigator’s conclusions from conducting the investigation and the reasons for those conclusions; and
(b) any recommendations that the investigator wishes to make arising from the investigation or those conclusions; and
(c) such other matters, if any, as are prescribed.
(3) As soon as is reasonably practicable after receiving the report, the Commission must:
(a) give a copy of the report, together with any written comments that it wishes to make, to the employer; and
(b) if the employer is the Commonwealth or a Commonwealth authority and the Commission thinks it appropriate to do so--give a copy of the report, together with those comments (if any), to the responsible Minister in relation to the employer.
(4) The Commission may, in writing, request the employer to provide to the Commission, within a reasonable period specified in the request, particulars of:
(a) any action that is proposed to be taken as a result of the conclusions or recommendations contained in the report; and
(b) where a notice has been issued under section 46 or 47 in relation to work being performed for the employer--any action that has been taken, or that is proposed to be taken, in respect of that notice;
and the employer must comply with the request.
(5) As soon as is reasonably practicable after the receipt of a report, the employer must give a copy of the report together with any written comment made by the Commission relating to the report:
(a) if there is at least one health and safety committee established in respect of some or all of the employer’s employees to whose work the report relates-- to each such committee; and
(b) if there is no such committee established in respect of some or all of the employer’s employees to whose work the report relates, but some or all of those employees (in respect of which there is no such committee) are included in at least one designated work group for which there is a health and safety representative--to each such health and safety representative.
72 The written report must relate to the investigation. The report must include the investigator’s conclusions and reasons for those conclusions, and any recommendation arising from the investigation or the conclusions. The report is published in the first instance only to the SRCC.
73 When a written report is given under s 53 the SRCC must give a copy together with any written comments it wishes to make to the employer.
74 The report does not have, by itself, any legal effect. The furnishing of the report to the SRCC obliged the SRCC to give a copy of the report to the appellant. The giving of the report by the SRCC to the employer obliges the employer to provide a copy of the report to any health and safety committee established in respect to the employer’s employees to whose work the report relates. If there is no such committee, the employer must give it to the representatives in s 53(5)(b).
75 Whilst the report by itself does not affect the employer, except to the extent that, because the SRCC must publish the report to the employer, the employer must republish the report in accordance with s 53(5), it does provide the trigger for the operation of s 53(4).
76 Section 53(4) empowers the SRCC to require the employer to provide the particulars referred to in s 53(4)(a) and (b). In this case no notice was given under ss 46 or 47, so the only effect that the writing of this report could have was to permit the SRCC to write to the appellant requiring the appellant to provide particulars of any action proposed to be taken as a result of the conclusions or recommendations in the report. The written report cannot require the employer to take any action. The only effect that the written report can have on an employer is on receipt of the written report from the SRCC to publish the report to the committee or persons mentioned in s 53(5) and to respond to any written request by the SRCC, if one is made, specifying any action that it intends to take in response to the written report. Specifically, a written report under s 53 has no consequences in terms of any civil or criminal liability.
77 Section 75 of the OH&S Act requires the SRCC to publish an annual report which relevantly includes:
(a) statistics, with appropriate details, of all accidents and dangerous occurrences notified to the Commission during the year under section 68; and
(c) statistics, with appropriate details, of all:
(i) investigations conducted; and
(ii) instances of the taking of possession of plant, substances or things, or of the taking of samples of substances or things under section 44; and
(iii) directions given under sections 45 and 45A; and
(iv) notices issued under sections 46 and 47; and
(v) appeals instituted under section 48 against investigators’ decisions; and
(vi) requests made under subsection 53(4);
during the year; ...
78 The obligation on the SRCC is only to publish statistics with appropriate details. The appellant contended that the obligation imposed by s 75 on the SRCC meant that there might be widespread publicity of any breach by an employer of s 17.
79 That contention must be rejected. The SRCC’s obligation is to provide statistics with appropriate details of investigations conducted (s 75(c)(i)) and of requests made under s 53(4) (s 75(c)(vi)). There is nothing in s 75 which would suggest that the SRCC would make any disclosure in its annual report of any employer who has been subject to investigation or any request of that employer under s 53(4).
80 The appellant contended that an investigation and a report under s 53 might adversely affect the appellant’s reputation. That is so but only, it would be thought, the appellant’s reputation with the respondents and the health and safety committee or the appellant’s employees mentioned in s 53(5).
81 The possible adverse effect on the employer’s reputation is minimal. Those matters are relevant in considering the content of the duty of procedural fairness owed to the appellant.
82 The respondents accepted that an investigator who is carrying out an investigation under s 41 as to whether the employer has breached s 17 must accord the employer procedural fairness. They accepted that the content of the procedural fairness rule in an investigation such as this includes:
(a) a reasonable opportunity to make submissions and present material to the investigator prior to the preparation of the relevant s 53 report; and
(b) an obligation to inform the employer or anyone else who might be adversely affected by the findings or conclusions in the report about the nature of the investigation and the issues which arise in it, unless those matters are inherent in the nature of the task itself.
83 The appellant contended that the content of the rule was wider than that conceded by the respondents. It was difficult to understand precisely the ambit of the rule as contended for by the appellant because the appellant did not address the rule at an abstract level. However, in the circumstances of this case, it was contended by the appellant that the investigator should have brought to the appellant’s attention that he proposed to have regard to incidents which occurred at other pit sites and Telstra’s reaction to those incidents, including the time Telstra might have taken to repair those pit sites. Moreover, the appellant should have been advised of any findings that the investigator intended to make based on those facts and circumstances.
84 The appellant eschewed on appeal any claim to be entitled to be provided with the draft report and conclusions and reasons prior to the publication of the report to the SRCC.
85 The content of the duty to accord procedural fairness will also be informed by the subject matter of the investigation. In this case the first respondent was requested to investigate the "Kirtley incident". Mrs Kirtley, of course, was not an employee of the appellant so that the investigation had to be, as the appellant was informed, whether the appellant had breached s 17 of the OH&S Act.
86 The parties proceeded before the primary judge on a statement of agreed facts which itself referred to correspondence which was exchanged by the first respondent and Telstra’s solicitors. The correspondence referred to facts outside of the statement of agreed facts which the parties also relied upon.
87 In this case the appellant was aware of the facts and circumstances which gave rise to the injury to Mrs Kirtley’s baby. It was the appellant which generated the report to Comcare which led to the appointment of the first respondent to investigate that incident. On 21 November 2006 the second respondent advised the appellant that the reactive investigation would examine the appellant’s compliance with s 17 of the OH&S Act.
88 The appellant was therefore fully aware, before the first respondent embarked on the investigation, that the investigator would investigate whether the injury to Mrs Kirtley’s baby was occasioned by the appellant’s failure to comply with s 17 of the OH&S Act. Putting aside the question whether the pit and the pit lid was a workplace, the appellant therefore knew that the investigator would have to investigate whether it had failed to take all reasonably practicable steps to ensure that Mrs Kirtley and her baby, had not been exposed to risk to their health or safety arising from the state of the pit and the pit lid. It knew that the first respondent would first have to investigate whether the pit and the pit lid exposed Mrs Kirtley and her baby to risk to their health or safety. If the first respondent was of the opinion that they did, the first respondent had to investigate whether the appellant had failed to take all reasonably practicable steps which led to the exposure to the risk. The appellant was aware that the investigator was obliged pursuant to the provisions of s 53, to prepare a written report relating to the investigation which had to include the investigator’s conclusions and the reasons for those conclusions. The appellant was on notice of the subject matter of the inquiry from the outset and the first respondent’s obligations.
89 After 16 November 2006 the appellant maintained that the incident involving Mrs Kirtley did not occur at a workplace.
90 On 24 November 2006 the first respondent sought information relating to the telephone conversations between the appellant’s staff and Mr and Mrs Kirtley, entries in the appellant’s relevant databases relating to the pit involved in the incident and the appelant’s policies and procedures relevant to maintenance, servicing and repair of the appellant’s pits pursuant to s 43 of the OH&S Act.
91 On 20 December 2006 the appellant’s solicitors wrote to the Manager, OH&S Compliance Vic & Tas of the second respondent asserting that Comcare was not authorized by the OH&S Act to conduct an investigation and was therefore not able to require the appellant to provide information under s 43 of the OH&S Act.
92 The appellant’s solicitors sought the following information from the second respondent:
(1) full details of the accident or dangerous occurrence that has happened in the performing of work for Telstra that you purport to be investigating;
(2) how you say this arises from the conduct of the undertaking of Telstra;
(3) how it is said that the place at which the incident occurred was a workplace under the control of Telstra;
(4) full details of the requirements of, or requirements properly made under, the Act or the regulations you are investigating compliance with;
(5) full details of any alleged breach or possible breach of the Act or the regulations being investigated;
(6) a copy of the statement made by the member of the public, or if such a statement has not been made, full details of that person’s allegations;
(7) full details of the injury alleged to have been suffered by the member of the public;
(8) any other document relevant to your decision to conduct an investigation.
93 On 22 December 2006 the first respondent responded to the appellant’s solicitors’ letter, disputing the appellant’s solicitors’ claim and reasserting his right to obtain information from the appellant pursuant to s 43 of the OH&S Act. He wrote:
However, Telstra is free to make any submissions it considers appropriate, concurrently with complying with my request for information, as to whether the incident was indeed notifiable. This will enable me to take Telstra’s submissions into account in preparing my report to the Safety, Rehabilitation and Compensation Commission addressing whether, among other things, Telstra is required to notify Comcare of this incident. Accordingly, please provide me with the information requested, together with any submissions Telstra would like to make regarding whether a pit lid constitutes a workplace in the relevant sense, by close of business on 9 January 2007.94 A letter dated 16 January 2007 from the appellant’s solicitors to the first respondent shows that the appellant’s solicitors met with the Deputy Chief Executive Officer of Comcare on 4 January 2007. Neither the letter nor the statement of agreed facts disclose what was said at that meeting and what information, if any, was given by Comcare to the appellant’s solicitors regarding the scope of the investigation. The first respondent’s report shows that he visited the nine sites in the Corporation (City) of Greater Geelong area on 13 December 2006, some three weeks before that meeting. Comcare, who employs the first respondent, was therefore in possession of that information at the time of the meeting. Whether that information was given to the appellant’s solicitors at that meeting is not addressed in the statement of agreed facts. In its letter of 16 January 2007 the appellant’s solicitors enclosed photographs taken after the rectification of the surrounds of the pit on 15 November 2006 and various reports. The appellant’s solicitors wrote that the information was provided in the spirit of cooperation whilst maintaining the appellant’s contention that the incident was not notifiable and that Comcare was not, as a matter of course, entitled to the information in relation to the particular matter.
95 On 22 August 2007 the first respondent sought further information from the appellant and, in particular, information which it had requested and not received in its request of 24 November 2006.
96 On 5 September 2007 the appellant’s solicitors provided the information on the basis that the documents would not be used for any purpose other than Comcare’s current investigation.
97 On 26 September 2007 the first respondent sought further documents from the appellant being:
1. Telstra’s maintenance schedules in relation to the servicing and repair of Telstra pits and the process for identifying pits requiring such maintenance, servicing and repair, throughout Australia.
2. Demonstrate that the process for identifying pits requiring maintenance, servicing and repair of Telstra’s pits and pit lids.
3. Documents to demonstrate the decision making process in respect to Telstra Pits and pit lids requiring maintenance, servicing and repair, throughout Australia.
98 On 30 October 2007 the appellant’s solicitors wrote to the first respondent in response to his letter of 26 September 2007 confirming that on 5 September 2007 they had, on behalf of the appellant, provided him with copies of a number of documents. They wrote:
These documents were provided to you notwithstanding the issues and concerns previously raised with Comcare by Telstra regarding the validity of the investigation into this incident and the subsequent requests for information. The documents previously provided to you fall within the ambit of your most recent request contained in your letter of 26 September. The documents previously provided to you demonstrate that Telstra has a repair/replace maintenance system for pits and manholes. It has in place well documented procedures for its employees and contractors to report damage; for those reports to be properly considered and assessed; and for maintenance and repair work to be carried out. In addition, Telstra has well documented procedures for recording complaints made by members of the public regarding damage to its infrastructure; for those complaints to be assessed and prioritised; and repair/replacement to occur. This process is entirely appropriate so far as reasonably practicable given the following:We have previously requested information from you as to, inter alia, how you say this incident arises from the conduct of the undertaking of Telstra and how it is said that the place at which the incident occurred was a workplace under the control of Telstra. We again request that you provide us with this information to enable us to properly understand the purpose of your investigation and to make full submissions on this point if necessary. Notwithstanding the information and documents previously provided to you and the information contained in this letter, Telstra remains of the view that, as it was neither: • present at the time of the incident; nor• there are approximately 266,000 manholes and 6,380,000 pits across Australia;
• the manholes and pits pose no ongoing risk to employees and the public;
• changes to the condition of the pit or manhole can occur due to conditions changing around them not within the control of Telstra;
• in any given period of time proportionally very few pits and manholes need repair;
• the need for repair is not a direct function of the elapsed time that the pit or manhole has been in situ;
• a scheduled annual inspection and maintenance program for every pit and manhole would cost tens of millions of dollars a year and would not overcome the need for reactive repairs;
• retrofitting of lockable lids on pits and manholes is not possible; the entire pit or manhole would need to be replaced at substantial cost per unit (see above for approximate numbers);
• pits and manholes are designed, manufactured and installed to be a self-contained, robust and maintenance free item of plant.
the area was not a workplace under Telstra’s control at the time and it was not doing anything in the conduct of its undertaking that could give rise to any duty or obligation under the OHSA. Telstra maintains that, for the reasons above, the OHSA does not apply to this incident and that you have no jurisdiction to further investigate it. It necessarily follows from that, that no findings of a breach of the OHSA or accompanying recommendations should be made. In the event that you intend to continue with the investigation, we ask that you provide us with at least 14 days notice of any forthcoming report or recommendation that follows from it.• conducting any work at the incident site at the time of the incident or close in time to the incident
99 On 26 February 2008 the investigation report was provided to Mr Trujillo.
100 The appellant has abandoned any claim that it was entitled to a draft of the report before the written report was provided by the first respondent to the SRCC. In our view, it was right to do so. There is nothing in the OH&S Act that would suggest there is an obligation upon an investigator to provide an employer with a draft copy of his or her report prior to publication of the report. Nor, in our view, did the obligation arise by reason of the way in which the investigation proceeded.
101 In our judgment, the content of the procedural fairness rule is no wider than that conceded by the respondents. We have pointed out the limited consequences that the written report can have upon an employer and the limited effect it might have on an employer’s reputation.
102 Because the provision of the report under s 53 can only have the limited effect of empowering the SRCC to request the information in s 53(4), and in this case the information in s 53(4)(a), and oblige an employer to comply with s 53(5), we think that the content of the procedural fairness obligation is satisfied by informing the party the subject of the inquiry and report of the nature of the investigations the issues arising, and give that party an opportunity to present material and make submissions to the investigator prior to the completion of the final report.
103 In this case, the appellant was given an opportunity to make submissions in relation to whether the pit lid and the pit was a workplace and it made submissions in that regard. The appellant was also given an opportunity to make submissions in relation to the steps which it took to ensure that persons near a workplace were not exposed to risks to their health or safety which, again, it took.
104 In our judgment, the content of procedural fairness in the circumstances of this case is as conceded by the respondents and that the first respondent discharged his obligations in that regard.
105 The second ground therefore fails.
Ground 3
106 The appellant contends that s 53 of the OH&S Act does not require an investigator to make any finding regarding the commission of breaches of the OH&S Act, and that the objects of that Act are not advanced by the making of such findings. The appellant contends that the object of a report under s 53 is to make factual findings and constructive recommendations so as to advance occupational health and safety in the workplace.
107 The first respondent has contended that such a finding was contemplated by the OH&S Act itself.
108 Section 41 of the OH&S Act specifically authorises and empowers an investigator to conduct an investigation concerning a breach or possible breach of the Act or the regulations. In our opinion, the OH&S Act contemplates that an investigation conducted under s 41 which leads to a report under s 53, contemplates that the investigator may make a finding of a breach or possible breach of the OH&S Act.
109 The OH&S Act provides an investigator who is conducting an investigation with a variety of powers to assist in the conduct of that investigation, some of which we have already noted. Section 42 provides the investigator with a power to enter a workplace and conduct a search and inspect a workplace, and to take measurements and photographs. That power is complemented by further powers in s 44.
110 Section 43 provides an investigator with the power to require various people to assist the investigator in his or her investigation. An investigator may give a written direction to ensure that a particular workplace is not disturbed in order to remove a threat to the health and safety of a person, or to allow inspection or to take measurements of the workplace: s 45. Section 45A allows that direction to be given orally. An investigator may also, after having conducted an investigation, issue a prohibition notice in order to remove an immediate threat to the health or safety of any person: s 46. Section 47 empowers an investigator to issue an improvement notice. The power may only be exercised where the investigator has conducted an investigation and has formed the opinion that a person is breaching, or has breached, and is likely to breach again, a provision of the Act or the regulations: s 47(1). If a notice is given under s 47, that notice must specify the breach of the provision of the Act or the regulations which, in the investigator’s opinion, is occurring, or has occurred, and is likely to occur, and set out the reasons for the investigator’s opinion: s 47(3).
111 The notice must also specify the period within which the person is to take the actions necessary to prevent any further breach of the provision or any likely breach: s 47(3)(b).
112 Section 47 not only permits an investigator to make a finding of a breach of the OH&S Act, it requires such a finding as a condition for the giving of an improvement notice.
113 The fact that an investigator must make a finding that a provision of the Act or the regulations has occurred before an improvement notice issue, supports a construction of s 41 that allows such a finding to be made for the purpose of a report under s 53. The finding has no legal consequences, civil or criminal.
114 Section 48 of the OH&S Act provides for a right of appeal if an investigator decides to exercise a power under ss 44, 45, 45A, 46 or 47. The appellant contended that because a right of appeal was given against a decision to issue an improvement notice, the obligation on the investigator to make a finding of breach did not indicate that an investigator was otherwise entitled to find a breach when no notice was to issue.
115 We reject that contention. The right of appeal given by s 48 is against an investigator’s decision to issue an improvement notice, not against a finding that a person has breached a provision of the Act or the regulations. The right of appeal in s 48 is not therefore a point of distinction.
116 The fact that s 48 allows for an appeal from a decision by an investigator to exercise a power under ss 44, 45, 45A, 46 or 47 to the reviewing authority ,does not bear on the question of whether an investigator can conclude that there has been a breach of a provision of the OH&S Act.
117 Section 41 empowers Comcare to appoint an investigator to conduct an investigation concerning a breach or possible breach of the OH&S Act or the regulations: s 41(1)(b). If an investigator is appointed to carry out an investigation of that kind, the investigator must comply with s 53 of the OH&S Act by preparing a written report and providing that report to the SRCC.
118 The report must include the investigator’s conclusions and the reasons for those conclusions: s 53(2)(a). It follows, where an investigation is being made into a breach of the OH&S Act, the investigator must reach a conclusion as to whether there has been such a breach and give reasons for that conclusion. The investigator cannot give a conclusion without expressing such an opinion.
119 An investigator appointed under s 41 of the OH&S Act may make a finding of a breach of the OH&S Act for the purpose of an investigator’s report under s 53 of the OH&S Act.
120 Ground 3 also fails.
Grounds 4, 5 and 6
121 The remaining grounds can be considered together. The appellant contended that s 53(2) of the OH&S Act requires the investigator to include in the report the investigator’s conclusions and the reasons for the conclusions. The reasons in the first respondent’s report, it was contended, failed to set out how any facts found by the first respondent were capable of satisfying the elements required to be established before a breach of s 17 of the OH&S Act could be found.
122 It was contended by the appellant that the content of the report demonstrated a "complete failure to understand what factual matters are required to prove the essential elements or integers of a breach of s 17 of the OHSA".
123 The respondents accepted that the provisions of s 25D of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) were applicable and, in those circumstances, the report needed to set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
124 The respondents contended that the first respondent had clearly set out his conclusion and his reasons for that conclusion.
125 They contended that he had also set out the findings of fact which supported the reasons and the conclusion.
126 The only conclusion reached by the first respondent was that the appellant breached s 17 of the OH&S Act in relation to the incident involving Mrs Kirtley and her baby. The reasons he gave for reaching that conclusion were that a member of the public who was not an employee was injured at a workplace owned by the appellant and under its control. The appellant had failed to take all reasonably practicable steps to ensure that persons, including members of the public, at or near its pits and pit lids, were not exposed to health and safety risks as a result of its undertaking.
127 For the reasons we have given earlier, it was appropriate for the first respondent to reach a conclusion in relation to a breach of s 17 of the OH&S Act. The reasons for that breach show that the first respondent has considered the elements of s 17 of the OH&S Act and has reasoned that those elements have been made out.
128 In our opinion, the findings which the first respondent has made support the reasons and thus the conclusion reached.
129 In our opinion, the first respondent has complied with the statutory obligation in the OH&S Act and the statutory obligation in s 25D of the Acts Interpretation Act. In our judgment, the findings which he made were adequate for the purpose of the reasons and his conclusion.
130 It has to be remembered that even though there is a finding that a breach of s 17 of the OH&S Act has been made, that of itself does not expose the appellant to any claim for damages under s 17 of the OH&S Act or any criminal prosecution.
131 The reasons and the conclusion support the recommendations which the first respondent made.
132 In our opinion, grounds 4, 5 and 6 also fail.
133 The appeal should be dismissed and the appellant should pay the
respondents’ costs.
Associate:
Dated: 31
August 2009
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Solicitor for the Appellant:
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Freehills Solicitors
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Counsel for the Respondents:
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Ms D S Mortimer SC with Mr S Moloney
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Solicitor for the Respondents:
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Minter Ellison Lawyers
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/103.html