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PR922208 

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION 

Workplace Relations Act 1996 

M K Vogt and S Fry 

Appeal under section 48 of the Occupational Health & Safety (Commonwealth Employment) Act 1991 against the decision of an investigator on I I January 2002 re the cancellation of a provisional improvement notice (C2002/770) 

Various employees                                     Telecommunications services 

COMMISSIONER SMITH 

MELBOURNE, 9 SEPTEMBER 2002 

Appeal against issue of a notice. 

DECISION 

Introduction.

[11 This is an appeal by Mr Mervyn K Vogt and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), made pursuant to s.48 of the Occupational Health and Safe (Commonwealth Employment) Act 1991 (OH&S Act), against a decision of Mr Shane Fry an investigator for Comcare. The decision of Mr Fry was to cancel a Provisional Improvement Notice issued by Mr Vogt. 

[2] Mr Vogt is an employee of Telstra Corporation Limited (Telstra), and one of four elected Health and Safety Representatives of a work group located at 301 Burwood Highway, Burwood. 

[3] On 6 June 2001, Mr Vogt issued a Provisional Improvement Notice (PIN)' under the OH&S Act in which he referred to work done at Stockholm University in relation to possible emissions from a retardant coating - Triphenylphosphate (TPP) - on new computer monitors.

The form of which is not relied upon to ground a jurisdictional objection, however it is contended that the PIN was not made consistent with the Occupational Health and Safe (Commonwealth Employment) Act 1991.

[41 The notice contained the following requirements:

I require you to advise me in writing of the nature and timing of the relevant tests and of the manufacturers specifications in relation to the chemical coating the screen being used. I require testing for triphenylphosphate coating and emissions and for any other suspect emissions. Further I require that such tests to establish the situation be conducted with expediency. I also require that the hardware manufacturers specifications be made available.

The action is taken under the provisions of the Occupational Health and Safe Act (s.16(l),(2)(a)(i), (2)(b)(i),(2)(c), (5)(a)).

[5] By letter dated 14 June 2001, Mr Vogt purported to extend the PIN for a 'further 14days" to cover the measurement of Electro Magnetic Radiation (EMR). It is also submitted that the PIN of 6 June was extended to cover Aspergillus, however Mr Vogt was unable to provide a copy of that document 2. I shall assume in this decision that the PIN was extended as the Comcare inspector acknowledged the extension 3 in his report and Aspergillus was the subject of investigation and report. 

[6] On 29 August 2001 a formal request was made by Telstra for Comcare to investigate a disputed PIN. The matter was investigated by Mr S W Fry a Comcare Investigator appointed under s.40(2) of the OH&S Act. Mr Fry cancelled the PIN on IO January 2002. 

[7] There were some submissions made concerning a PIN issued in June 2000 relating to air-conditioning records, but Mr Vogt submitted that this had been withdraw. 

[8] On 24 January 2002 the appeal was lodged and Justice Giudice constituted the Reviewing Authority as defined in ss.5(l) the OH&S Act on 25 January 2002. 

[9] Mr Vogt appeared on his own behalf, Mr Watson of counsel with Mr Snell, appeared for Comcare and the investigator, Mr Fry; and Mr Lindeman of counsel with Mr Dent, appeared on behalf of two Telstra employees, Mr Baulch and Ms Simpson.

2 Transcript PN269 

3 Exhibit WI paragraph 16.

2

Legislative Framework.

[10] Section 29 of the OH&S Act is the source of power for an occupational health andsafety representative to issue a PIN. The section provides inter alia:

Provisional improvement notices

29. (1) Where a health and safety representative for a designated work group believes, on reasonable grounds, that a person:

(a) is contravening a provision of this Act or the regulations; or

(b) has contravened a provision of this Act or the regulations and is likely to contravene that provision again;

being a contravention that affects or that may affect one or more employees included in the group, the representative must enter into consultations with the person supervising the work performed by the employee or employees in an attempt to reach agreement on rectifying the contravention or preventing the likely contravention.

(2) If in the health and safe representative's opinion, agreement is not reached within a reasonable time, the health and safety representative may issue a provisional improvement notice to the person (in this section called the "responsible person ") responsible for the contravention.

(3) Where the responsible person is an employer but it is not practicable to issue the notice to the employer by giving it to the employer, the notice may be issued to the employer by giving it to the person who is, or who may reasonably be presumed to be, for the time being, in charge of the activity, undertaken by the employer, in connection with which, in the health and safety representative's opinion, the employer is contravening, or is likely to contravene, this Act or the regulations and, where the notice is so issued, a copy of the notice must be given to the employer as soon as practicable thereafter.

(4) The notice must.-

(a) specify the contravention of the provision of this Act or the regulations that, in the health and safe representative's opinion, is occurring or is likely to occur, and set out the reasons for that opinion; and 3 (b) specify a period of not less than 7 days commencing on the day after the notice is issued, being a period that is, in the representative's opinion, reasonable, within which the responsible person is to take action necessary to prevent any further contravention of the provision or to prevent the likely contravention of the provision, as the case may be.

[11] A contravention may arise from the application of s. 1 6 of the OH&S Act which deals with the general duty of the employer to protect the occupational health and safety of employees. 

[12] Section 16 provides inter alia:

(1) An employer must take all reasonably practical steps to protect the health and safe at work of the employer's employees

(2) Without limiting the generality of subsection (1), an employer contravenes that subsection if the employer fails to take all reasonably practical steps:

(a) to provide and maintain a working environment (including plant and systems of work):

(i) that is safe for the employer's employees and without risk to their health; and

(ii) that provides adequate facilities for their welfare at work,and......

[13] Upon the issuing of a PIN, the employer must comply 4 unless within 7 days of the notice being issued, a request is made to Comcare for an investigation at which time the PIN is suspended until an investigator determines the matter5. In his report, Mr Fry rightly, in my view, criticised Telstra6 for not complying with the Act by requesting an investigation some two months following the imposition of the PfN.

4 Occupational Heath and Safety (Commonwealth Employment) Act 1991 - s.29(14)

5 Supra s.29(8) and (9) 

6 WI attachment SWF 5 paragraph 4.6

Consideration of the Issues

[141 In Australian National Railways Commission v Allan Craig Rutjens (Rutjens) a Full Bench of the Australian Industrial Relations Commission (AIRC) considered the approach to be taken to matters coming before it pursuant to s.48 of the OH&S Act. The Bench concluded:

The nature of the proceeding before the investigator, the potential for workplace circumstances to change over time and considerations of fairness all suggest that it was intended that an appeal under s.48 involve a hearing de novo. This conclusion is reinforced by the terms of section 48 of the OH&S Act. In particular subsection 48(6) and (7) provide:

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

(7) Where the decision is varied, revoked or revoked with the substitution of another decision, the decision is to be taken to have effect, and to have always have had effect, accordingly.

The power to make, on appeal, such a decision as it thinks appropriate subject only to the requirement that it is a decision of the kind appealed against, points to the conclusion that the Commission is required to decide the case on the facts and law which exist at the date of its decision [see Re Coldham and others; Ex parte Brideson No. 2 (1990) 170 CLR 267,- Public Service Association of South Australia v. Federated Clerks' Union of Australia; South Australian Branch (1991) 773 CLR 132. R v. His Honour Judge Rendit, Ex parte the Health Commission of Victoria [1982] VR 279.

Given the nature of the proceedings before the primary decision maker and the terms of section 48 of the OH & S Act we have concluded that an appeal pursuant to section 48 is to involve a hearing de novo. As previously stated an appeal of this nature involves afresh he ring with the parties entitled to begin again and adduce new evidence. 7

[151 However, in this matter the first issue raised amounts to a consideration of the proper operation of s.29(l) of the OH&S Act which, it is said, would determine whether or not the AIRC had the power to consider the matter under s.48. It was submitted: 

MR SNELL: If it assists my friend, we don't seek to rely on the defect in the for as such as founding any basis for jurisdictional want. It is simply a question of whether the reasonable belief existed and on reasonable grounds. So the form itself not being the approved form is not a matter which we rely on, although the content is a relevant matter, we say.8

7 PrintN1939 

8Transcript PN27

 5

[161 The argument, as I apprehend it, is that unless the health and safety representative for a designed work group believed, on reasonable grounds, that a person is contravening, has and is likely to contravene again, a provision of the OH&S Act or Regulations, then no power exists to issue a PIN. It would follow that no PIN having been issued then no appeal could be instituted. 

[17] Some focus is given to this issue through the cross-examination of Mr Fry by Mr Vogt.

[18] Mr Vogt challenged Mr Fry as to whether or not he (Mr Vogt) had made any allegations that there was exposure to TPP and EMR.

MR VOGT.- Now, what were your grounds for coming to that conclusion, a breach of the Act?

MR WATSON Sorry, with respect, I object to that. It is actually Mr Vogt who had to come to that view? --- Yes.

MR VOGT.- I am sorry, no. You have just told me that in the PIN it says nowhere that there was exposure - that I was claiming there was exposure? --- But you are actually the one who is issuing the provisional improvement notice, so it is your responsibility to actually cite a breach of the legislation, a breach of the contravention of the legislation, and to cite that as part of your provisional improvement notice. That is the basis for issuing the PIN.

Does the PIN anywhere state or suggest there has been exposure? Where does this question of my allegation of there being exposure to TPP? At this stage I don't know, neither does anybody else, and even now neither does anybody else, do they? --- No.

They don't. Okay. So it was an assumption on your behalf was it? Was it my request in relation to electromagnetic emissions, was it not also for testing? Did it claim anything about those emissions, or is there anything in your knowledge where I had claimed anything in relation to those emissions ?9

[19] In relation to Aspergillus, Mr Vogt again challenged Mr Fry:

MR VOGT.- We will leave that go for a moment. In the case of Aspergillus or indoor moulds, what was requested here? --- What was requested?

By the occupational health and safety rep? --- That is yourself?

That is myself? --- Okay. You requested testing for Aspergillus. I see? --- That is right

9 Transcript PN325-329

6

Were there any allegations of exposure at that time, or can you show me anywhere where there are allegations of exposure? --- No.10

[201 Then followed this exchange between Mr Vogt and Mr Fry:

Mr Vogt.- I suggest perhaps a misreading of the facts of the PIN. Is requiring testing the same as saying I was making allegations of exposure, or that the PIN was making allegations of exposure? --- I mean, you have to have a basis for requesting information. You have collected evidence to suggest -the basis for your PIN would be to collect evidence to suggest that there is a hazard within the workplace, okay ' 7 Now, the hazards, the basis for issuing the PIN is that you believe that the employer has contravened the legislation or is continuing to contravene the legislation. So having - you would have to have reasonable grounds to believe that, and you would have to have evidence to suggest that there is a hazard in the workplace. Now, your PINs basically draw into line a request for testing on EMR, Aspergillus and triphenylphosphate. So is that not your basis for issuing the PIN based on the fact that those hazards exist in the workplace potentially?

Is it that you are saying that it is not proper to request information even through a PIN? --- Not through a PIN. In issuing a PIN you need to establish that there is a hazard in the workplace, and that there is currently a contravention of the legislation under section 29, and you need to put that evidence forward as part of your provisional improvement notice.

I see. But it is a catch 22 situation, you would agree? --- No. You can certainly request the information from the employer. And if you don't get that information from the employer, then it may be that you approach Comcare, and we carry out an investigation, like an initial inquiry as to why the employer hasn't provided this information to you, as opposed to issuing a PIN, as you have done.

I am a little bit nonplussed with this. So it is a catch 22 situation. To approach you there has to be some method of doing that. Does the Comcare advice anywhere advise OH&S delegates that they can approach directly without a PIN? --- Definitely. I mean, you would have received training as a health and safety rep.

I did?---Yes.

You are making assumptions about that training? --- Well, the advice is also contained in publications within Comcare that have been provided to health and safety reps in relation to requesting investigations and seeking advice.11

10 Transcript PN348-352

11 Transcript PN 353-358

7

[21] Whilst it can be seen that Mr Vogt was not alleging exposure to the matters raised in the PIN, he nonetheless was still of the view that Telstra had contravened the Act. It must be remembered that a contravention can arise if an employer fails to take "all reasonably Practical steps" to provide and maintain a working environment which is safe and without risk to the health of employees. 

[22] What Mr Vogt described as a "catch 22" position can be seen as, in his view, Telstra not taking all reasonable steps to investigate the matters raised so as to provide that working environment. 

[23] In relation to TTP, Mr Vogt raised his concerns at an Occupational Health and Safety Committee (OH&S Committee) meeting in January 2001. The minutes record that Ms Farelly from Telstra was to arrange for suitable testing of the new centre monitors. 

[241 The minutes of the OH&S Committee in April 2001 record that Telstra had followed up the matter raised by Mr Vogt and that it had reached the conclusion that no risk had been established. Mr Vogt was unhappy with the answer in light of his preliminary research.

[251 There appears to be no similar evidence in relation to the other two matters whichwere said to be extension to the PIN namely EMR and Aspergillus.

[261 When Comcare became involved it engaged Dr Gras, an occupational physician with Health Services Australia to advise on the risk of exposure to Aspergillus, EMR and TPP. Having regard to report of Dr Gras, Mr Fry cancelled the PIN. 12 

[27] Whilst Mr Fry's report states that the PIN was not set out in accordance with the Form I, Reg 30 of the OH%S Act 13, the issue confronting me is one of substance not form. Examining the matter objectively, did Mr Vogt have a belief, on reasonable grounds, that Telstra was contravening a provision of the OH&S Act? 

[281 Telstra had acted, albeit too slowly for Mr Vogt's liking, to address his concerns. Concerns formally raised had been addressed prior to the issuing of the PIN. The problem was that Mr Vogt did not agree with the response.

12 Exhbit WI; Attachment SWF5; paragraph 6.1

13 Exhibit WI; Attachment SWF5; paragraph 1.8.1

[29] Against that factual background, can it be said that Telstra failed to take all reasonably practical steps to provide and maintain a working environment that is safe for employees without risk to their health? In my view, there is some force to the argument advanced by Mr Vogt that a PIN can be issued if concern is expressed, information is sought and it is not acted upon with some urgency. In light of the action taken by Telstra there is some doubt as to whether the PIN was validly imposed. Particularly given the focus of Mr Vogt; namely not that steps were not taken, but that he disagreed with the results. Additionally there is force to the argument that the PIN should not have been issued given Mr Fry's evidence which outlined the course that should have been taken place rather than the imposition of the PIN. However, for the purpose of this decision I will assume that the PIN was validly issued, because in the present matter, we also have the benefit of Comcare (acting on the PIN) providing a report. It can be assumed that Comcare also accepted that the PIN had been validly issued although its form was incorrect. 

[30] At the hearing of 27 June counsel for both Comcare and Telstra urged me to bring the proceedings to an end and not to allow Mr Vogt to "go on a fishing expedition". In addition, I was advised that Telstra no longer occupied the premises at 301 Burwood Highway, Burwood and as such elements of the appeal were no longer relevant. At the conclusion of that hearing I provided Mr Vogt with the opportunity to submit written submission. 

[31] Mr Vogt now seeks to goes further in this appeal. He seeks, late in the appeal, to admit new material which is designed to contest the expert evidence of Dr Gras which was not shaken under cross-examination. 

[32] In his written submission, Mr Vogt seeks to generally call into question a number of findings by Dr Gras as well as standards adopted by the National Occupational Health and Safety Commission. 

[33] In Rutjens, the Full Bench dealing with a prohibition notice, decided that new material could be admitted and offered this consideration: 

9

On the other hand there are a number of features which indicate that the appeal cannot be conveniently or readily undertaken if the Commission is confined to the materials before the investigator. In particular a decision to issue a prohibition notice may be made without the benefit of a hearing and without any appearance by the employer or by any legal representative on his behalf Given the dynamic nature of many workplaces there is also the potential for there to be a significant change in circumstances between the time of the investigators decision and the hearing of the appeal. Further, severe consequences may flow from a decision to issue a prohibition notice including substantial limitations on the performance of specific work.

The nature of the proceeding before the investigator, the potential for workplace circumstances to change over time and considerations of fairness all suggest that it was intended that an appeal under s.48 involve a hearing de novo. This conclusion is reinforced by the terms of section 48 of the OH & S Act. 14

[341 In my view, it can not normally be the function of an appeal under s.48 for the Commission to embark upon a scientific inquiry as to the correctness or otherwise of, among other things, Australian standards fixed by the relevant regulatory authority. Of course this does not preclude bringing to notice a standard which may be so enveloped in historical dust that a review of contemporary literature is not unreasonable. 

[35] 1 agree that the matter should conclude at this stage because Mr Vogt has not demonstrated that either Telstra or Comcare have not reasonably carried out their obligations under the Act. The provision of new material in these proceedings, as foreshadowed by Mr Vogt, would not bear upon this question. Comcare has taken the matter seriously and acted accordingly. I am satisfied on the material and evidence before me that Comcare have provided a series of reasonable responses. 

[36] Against this background I dismiss the appeal.

14 Print N] 939 

1 0

Appearances:

M Vogt the appellant.

G Watson of Counsel, with M Snell Solicitor, on behalf of Comcare and Mr Shane Fry.

A Lindeman of Counsel, with G Dent on behalf of Mr Baulch and Ms Simpson of Telstra Corporation Limited.

Hearing details:

2002. Melbourne. February, I 1; April, 3; June, 27.

Printed by authority of the Commonwealth Government Printer 

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