DP World Brisbane Pty Ltd v Rogers and the Electrical Trades Union of Employees [2015] QIRC 46

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: DP World Brisbane Pty Ltd v Rogers and the Electrical Trades Union of Employees [2015] QIRC 046 PARTIES: DP World Brisbane Pty Ltd (Applicant) v Gary John Rogers (Respondent) and Electrical Trades Union of Employees (Second Respondent) CASE NO: WHS/2013/24 PROCEEDING: Application for a Work Health and Safety entry permit to be revoked - show cause DELIVERED ON: 11 March 2015 HEARING DATE: 27 February 2015 MEMBER: Deputy President O’Connor ORDERS : 1. Pursuant to s 139(1) of the Work Health and Safety Act 2011, Garry John Rogers is to show cause in writing by 12 March 2015 as to why his Work Health and Safety Entry Permit should not be revoked. 2. That the reasons for my issuing a Show Cause Notice to Garry John Rogers are those matters outlined in the Application to Revoke Work Health and Safety Entry Permit filed in the Industrial Registry on 4 March 2013 together with those matters outlined in the affidavit of Wayne Whitaker also filed 4 March 2013. 3. That as the Application to revoke Work Health and Safety Entry Permit and the affidavit of Wayne Whitaker have been served on Garry John Rogers and the Electrical Trade Union of Employees, Queensland, I do not attach these -- 1 of 3 -- 2 documents to this Notice. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REVOCATION OF A WHS ENTRY PERMIT - Whether the Respondent to issue a show cause notice. CASES: Work Health & Safety Act 2011, s 138, s 139(1) APPEARANCES: Mr R. King and Mr R. Gunningham of K&L Gates for the Applicant. Ms K. Inglis from the Electrical Trades Union of Employees (ETU). Decision from the bench [1] This is an application by DP World Brisbane Pty Ltd for an order pursuant to s 138 of the Work Health and Safety Act 2011 ("the Act"). [2] In particular, the applicant seeks the following orders: 1. an order revoking the Work Health and Safety (WHS) Entry Permit holder's entry permit; or 2. an order imposing conditions on the WHS Entry Permit holder to permit further contravention or improper exercise of the WHS Entry Permit holder’s entitlement to the effect that entry permit holder is suspended from the exercise of the entry permit holder's entry permit until the entry permit holder has undertaken training on the proper exercise of the powers under the entry permit. [3] The application before me was filed on 4 of March 2013. Directions were given by the Commission for the application to be made ready for hearing. These were given on 8 March 2013 and 21 March 2013. The application was heard on 17 to 21 June 2013 and again on 24 July 2014. I have been asked today to consider whether there is sufficient grounds upon which an order can be properly made pursuant to s 139(1) of the Act seeking to show cause by Garry John Rogers in writing why the entry permit should not be revoked. The material before me consists of both the application filed on 4 March 2013, and an affidavit of Wayne Whitaker sworn and filed on the same date. [4] The show cause notice, I accept, is contingent upon an application being commenced. In issuing the show cause notice, I must be satisfied that a ground may exist for the revocation of an entry permit. Having been so satisfied, a show cause notice must therefore be issued. I also accept the submissions that have been made to me in relation to this matter that there was no time limitation period for the issuing of a show cause notice. Having regard to the application and the affidavit of Mr Whitaker, I am satisfied on the face of the material before me that a ground may exist. -- 2 of 3 -- 3 [5] In coming to that conclusion, I take particular note of the grounds set out in the application. Namely, that the respondent contravened the conditions of the WHS Entry Permit, that the respondent acted in an improper manner in the exercise of the respondent's - permit holder's rights under the Act, and in the course of exercising or purporting to exercise his permit entry holder's rights, the respondent intentionally hindered or obstructed DP World Pty Ltd, the applicant, as a person conducting the business or undertaking, or the applicant's workers at the workplace. Each of those matters are supported by the affidavit of Mr Wayne Whitaker. [6] Ms Inglis submitted that in regard to the application before me, that I should not exercise my powers under s 139(2) of the Act to suspend the operation of the WHS Entry Permit until the Commission decides the application for revocation. Having regard to the fact that this application was filed on 4 March 2013, the length of time, and no other material before me, I would not propose to exercise my discretion to make such an order. [7] I am satisfied on the material before me, both the application and the affidavit material in support, that the necessary orders should be made and a show cause notice issue. Orders [8] I make the following orders: 1. Pursuant to s 139(1) of the Work Health and Safety Act 2011, Garry John Rogers is to show cause in writing by 12 March 2015 as to why his WHS Entry Permit should not be revoked. 2. That the reasons for my issuing a Show Cause Notice to Garry John Rogers are those matters outlined in the Application to Revoke WHS Entry Permit filed in the Industrial Registry on 4 March 2013 together with those matters outlined in the affidavit of Wayne Whitaker also filed 4 March 2013. 3. That as the Application to revoke WHS Entry Permit and the affidavit of Wayne Whitaker have been served on Garry John Rogers and the Electrical Trade Union of Employees, Queensland, I do not attach these documents to this Notice. -- 3 of 3 --