Comcare Final
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AIRC.Decision

 

IN THE INDUSTRIAL RELATIONS COMMISSION OF AUSTPALIA

BETWEEN MERVYN VOGT & ANOR

AND SHANE FRY & ORS

 

 

 

COMCARE'S SUBMISSION IN REPLY

 

I This appeal by Mr Vogt is brought pursuant to s48 of the Occupational Health & Safety (Commonwealth Employment) Act 1991 ("the OH&S Act"). Pursuant to s48(6) of the OH&S Act, the IRC may affirm, revoke or vary the decision of Mr Fry. While it is not absolutely clear, the submissions made by Mr Vogt appear to amount to a concession that the decision of Mr Fry should be affirmed and the appeal dismissed. This appears to be the effect of the second last paragraph where it is stated:

"However, having regard to difficulties which may confront the Commission with the change of location and to the fact that ComcarelTelstra appear prepared to drag the Commission into unnecessarily long hearings which could act to the detriment of our workplace, we would be prepared at this stage as a gesture of goodwill with the permission of the Commission to withdraw from the present action".

 

2. There does, however, remain a lingering doubt as to whether this is truly the position this doubt stemming from the lengthy and discursive submissions put forward by Mr Vogt. It does appear necessary for the IRC to deliberate on the reasons why, pursuant to s48(6), the decision of Mr Fry should be affirmed.

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3. In that event Comcare asks the IRC to go further than merely recording a dismiissal of this appeal. There have been relatively few appeals of this kind. Guidelines are important to prevent a potentially improper use of the legislation and a diversion away from the important matters of policy which the legislation reflects. In those circumstances Comcare requests that the IRC take this opportunity to declare certain guidelines in respect of the appropriate use of the OH&S Act. We submit that these guidelines are uncontroversial:

(a) The objects of the OH&S Act are clearly stated in s3 and proceedings commenced under it should be for the purpose of achieving these objects - actions taken in purported pursuance of the OH&S Act for other purposes are neither sanctioned nor protected by the OH&S Act.

 

(b) Before a health and safety representative can issue a provisional improvement notice ("PIN") pursuant to s29 of the OH&S Act, that representative must have formed a belief, on reasonable grounds, that there is a contravention of the OH&S Act: see s29(l) and (2). This is an essential prerequisite to the issue of a valid PIN.

(c) A belief held upon reasonable grounds is more substantial than supposition or intuition: George v Rockett (1 990) 170 CLR 104. If no reasonable grounds for holding a belief can be established, the PIN would be invalid.

(d) Whether there are reasonable grounds for the existence of a belief is not satisfied by a subjective test: it is an objective test, to be applied against the standard of a reasonable person in the position of the health and safety representative. That is to say, it is not sufficient for the representative to state his or her belief, but

rather:

"When a statute prescribes that there must be 'reasonable 

grounds'for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that 

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state of mind in a reasonable person ": George v Rockett at 1 12.

(e) Unless there are objective facts which would lead a reasonable person to hold a belief of a contravention of the Act, a valid PIN may not be issued.

4. Further, Comcare notes that a substantial reason advanced by Mr Vogt in consenting to the dismissal of the appeal, is the estimate given by it and Telstra as to the likely length of the appeal if, contrary to the present application by them, these proceedings are permitted to continue. Comcare cannot allow to go uncontroverted the suggestion that it has prolonged or intends to prolong the proceedings with a view to discouraging the ventilation of legitimate OH &S issues by the Applicants. On the contrary, Comcare's estimate was offered to assist the IRC in the exercise of its power to control the conduct of proceedings before it, and with a view to preventing the further diversion of the resources of the Commission and the respondent parties in meeting what now appears to them plainly to be an unmeritorious application.

5. That estimate as to the likely length of proceedings, and the submissions by the parties as to the merits of the application, were made having regard to the conduct of the matter to date and particularly;

(a) The continuing failure by Mr Vogt, despite specific invitation by the IRC, to file cogent expert evidence directed squarely at the issues identified by it for his consideration and substantially controverting the body of scientific and medical evidence filed by the Respondents,

(b) His submission, instead, of voluminous scientific and other documentary material, without apparently direct connection to the issues in the Appeal, with the apparent design of supporting further lengthy cross-examination of witnesses yet to be called by the Respondents;

(c) The discursive, gratuitous and argumentative conduct by Mr Vogt in his examination of witnesses and his oral and written submissions to the Commission.

Comcare respectfully submits that to the extent the likely length of the proceedings is a factor in any decision by the IRC to dismiss the appeal, its reasons should reflect that the length of the proceedings was not a matter to which the Respondents contributed deliberately or 

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unnecesarily.

4. Finally, we ask the IRC to make an observation that the processes which lead to the issue of a PIN or, for that matter, an appeal pursuant to s48 of the OH&S Act, may not properly be used as a vehicle to agitate a political or industrial issue unrelated to the objects of the Act or as an opportunity to oppress other parties.

25 July 2002

GEOFFREY WATSON

Just simply could not resist the comment that suggesting that I as an individual could be considered to be able to oppress Telstra and Comcare two of the largest corporations in the country with access to more than $100m to pay legal fees and with massive resources might be considered amusing, flattering, ludicrous, or by some dishonest. It is like accusing an ant of attacking two elephants.

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