Applications by Simon Blackwood pursuant to s 138 of the Work Health and Safety Act 2011 to revoke WHS entry permits, Re [2014] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Applications by Simon Blackwood pursuant to s 138 of the Work Health and Safety Act 2011 to revoke WHS entry permits [2014] QIRC 173 PARTIES: CASE NO: PROCEEDING: PARTIES: CASE NO: PROCEEDING: PARTIES: Simon Blackwood (Regulator) (Applicant) v Anthony Robert Kong (Respondent) and Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (Second Respondent) WHS/2014/78 Application to revoke WHS entry permit Simon Blackwood (Regulator) (Applicant) v Edward Molloy Bland (Respondent) and Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (Second Respondent) WHS/2014/79 Application to revoke WHS entry permit Simon Blackwood (Regulator) (Applicant) v Kevin Stewart Griffin (Respondent) -- 1 of 10 -- 2 and Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (Second Respondent) CASE NO: WHS/2014/80 PROCEEDING: Application to revoke WHS entry permit DELIVERED ON: 29 October 2014 HEARING DATE: 1 October 2014 17 October 2014 (Written Submissions) 20 October 2014 22 October 2014 MEMBER: Deputy President Kaufman ORDERS : 1. Matters should proceed before the Commission by way of an oral hearing. CATCHWORDS: INDUSTRIAL LAW - REVOCATION OF WHS ENTRY PERMITS - Whether revocation proceedings before the Commission should proceed by hearing or "on the papers" - Natural Justice Hearing Rule CASES: Industrial Relations Act 1999, s 274, s 282, s 320 Work Health and Safety Act 2011, s 3, s 67C, s 67D s 116, s 117, s 120, s 121, s 131, s 132, s 138, s 139, s 140, Schedule 5 SDAEA v NRA [2005] QIC 44 Twist v Randwick Municipal Council (1976) 136 CLR 106 Salemi v Mackellar (No 2) (1997) 137 CLR 396 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 APPEARANCES: Mr A. Herbert, of counsel, directly instructed by Simon Blackwood (Regulator, Workplace Health and Safety Queensland) Mr B. Docking, of counsel, instructed by Hall Payne Lawyers for the Respondents -- 2 of 10 -- 3 Reasons for Decision [1] Simon Blackwood, a public service officer appointed as the regulator in accordance with Schedule 2, Part 1 of the Work Health and Safety Act 2011 (the Act) has applied to the commission for the revocation of the WHS entry permits of the natural respondents. The application is made pursuant to s 138 of the Act. Scheme of the Act [2] The object of the Act is set out in s 3, which provides: "3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by- (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant; and (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and (d) promoting the provision of advice, information, education and training in relation to work health and safety; and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and (f) ensuring appropriate scrutiny and review of actions by persons exercising powers and performing functions under this Act; and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in Queensland. …" [3] In furtherance of the object, Part 7 of the Act empowers WHS entry permit holders to enter workplaces for several purposes.1 1 See ss 117, 120 and 121. -- 3 of 10 -- 4 [4] In the dictionary to the Act, Schedule 5, provides that a "WHS entry permit holder means a person who holds a WHS entry permit." A "WHS entry permit means a WHS entry permit issued under part 7." [5] Division 1 of Part 7 contains s 116 - Definitions, which does not further define a WHS entry permit holder. Division 5 is headed "WHS entry permits." By s 131 a union may apply to the industrial registrar for the issue of a WHS entry permit to a person who is an official of the union. If the industrial registrar has taken into account the matters set out in s 132 and is satisfied about the matters in s 133, he may issue a WHS entry permit to the relevant person. [6] Section 138 permits an application to be made for the revocation of a WHS entry permit. Sections 138, 139 and 140 relevantly provide: "138 Application to revoke WHS entry permit (1) The following persons may apply to the commission for a WHS entry permit held by a person to be revoked- (a) the regulator; … (2) The grounds for an application for revocation of a WHS entry permit are- (a) that the permit holder no longer satisfies the eligibility criteria for a WHS entry permit or an entry permit under a corresponding WHS law, or the Fair Work Act or the Workplace Relations Act 1996 of the Commonwealth or for an industrial officer authority; or (b) that the permit holder has contravened any condition of the WHS entry permit; or (c) that the permit holder has acted or purported to act in an improper way in the exercise of any right under this Act; or (d) in exercising or purporting to exercise a right under this part, that the permit holder has intentionally hindered or obstructed a person conducting the business or undertaking or workers at a workplace. (3) The applicant must give written notice of the application, setting out the grounds for the application, to the person who holds the WHS entry permit and the union concerned. (4) The person who holds the WHS entry permit and the union that the WHS entry permit holder represents are parties to the application. 139 Commission must permit WHS entry permit holder to show cause (1) If, on an application under section 138, the commission is satisfied that a ground may exist for the revocation of the WHS entry permit under section 138(2), the commission must- -- 4 of 10 -- 5 (a) give the WHS entry permit holder written notice (a show cause notice); and (b) if the commission considers it appropriate, suspend the operation of the WHS entry permit until the commission decides the application for revocation. (2) The show cause notice must- (a) contain a statement to the effect that the WHS entry permit holder may, not later than 21 days after the day the WHS entry permit holder is given the notice, give the commission written reasons explaining why the WHS entry permit should not be revoked; and (b) be accompanied by a summary of the reasons for the application; and (c) if applicable, be accompanied by a notice of suspension of the permit. 140 Determination of application (1) If the commission is satisfied on the balance of probabilities about any of the matters in section 138(2), it may make 1 or more of the following orders- (a) an order imposing conditions on the WHS entry permit; (b) an order suspending the WHS entry permit; (c) an order revoking the WHS entry permit; (d) an order about the future issue of a WHS entry permit to the person whose WHS entry permit is revoked; (e) an order imposing any alternative action the commission considers appropriate. (2) In deciding what action to take under subsection (1), in relation to a person, the commission must take into account- (a) the seriousness of any findings of the commission having regard to the object of this Act; and (b) any other matters the commission considers relevant. …" [7] Each of the natural respondents is an official of the union respondent and is a WHS entry permit holder. Each of them has been given a show cause notice pursuant to s 139(2) and each of them has exercised his implicit s 139(2) right to provide written reasons explaining why his WHS entry permit should not be revoked. [8] Each application for revocation specifies the grounds under s 138(2) upon which the application is made and the regulator relies. It also recites the incident or incidents which are said to found each ground. Accompanying each application is an affidavit of one or more inspectors or officers appointed under the Act. [9] The format of the majority of the affidavits is that the deponent attests to having taken statements from employees on the building sites where the misconduct of the -- 5 of 10 -- 6 natural respondents is alleged to have occurred. The interviews were tape recorded and what is said to be an accurate transcript of the interview is exhibited to the affidavit. There are also some photographs exhibited. There is little direct evidence from the deponent about any of the events that are said to constitute the alleged contraventions of the Act by the WHS entry permit holders. [10] The matters have been allocated to me to determine the applications for revocation under s 140 of the Act. I listed them for mention on 1 October 2014. Mr A Herbert, of counsel, appeared for the regulator and Mr C Massey, solicitor, appeared for the respondents. A discussion about how these matters are to be progressed ensued, at which time Mr Herbert submitted that "the appropriate process is for a hearing on the papers" and briefly outlined his reasoning. I adjourned the hearing and directed the parties to file written submissions; which they did. [11] The matter resumed on Monday 20 October 2014 when the suggestion was made that I might state a case for the Industrial Court of Queensland under s 282 of the Industrial Relations Act 1999. In order that I could properly address that issue the parties agreed to prepare a statement of agreed facts and the questions they sought to have answered should a case be stated. That document was provided and I determined that I would not state a case and would deal with the question of how these matters are to proceed myself. I heard the matter on 22 October 2014 and decided that the matters should not proceed on the papers, but rather they should proceed as a normal contested hearing or trial and issued consent directions as to their future conduct. These are the reasons for my decision. [12] In his written submissions, filed on 17 October 2014, Mr Herbert said: "The legislative procedures set out in the WHS Act require a particular process and procedure to be followed, which is significantly different from that which is now proposed. …Upon being satisfied 'on the papers', the Commission is required by section 139(1) to itself give the permit holder a written notice called a "show cause notice" … from this point, the process is one which is conducted by the Commission rather than by the original applicant. …there is no provision for the holding of a hearing in relation to the matter which would ultimately then become a contest between the applicant on the one hand, and the permit holder and the union on the other hand, in circumstances where the matter in contention is the question as to whether the Commission's prima facie satisfaction under section 139(1) should be given effect to by the imposition of one or other of the orders set out in section 140(1). This would lead to the undignified prospect of the parties debating the correctness of the Commission's initial decision whilst the Commission looked on. This is not an inter partes proceeding as between the original applicant (in this case, the Regulator) and the holder of the entry permit. It is an administrative process in which the applicant seeks, by the filing of an application, to initiate -- 6 of 10 -- 7 a process which is shortly taken over by the Commission itself, in which the Commission conducts a stepped procedure in which it first either attains a degree of satisfaction or does not, and if it does, it commences a process in which the permit holder and the union are called upon to explain to the Commission various matters in writing within a prescribed time period. … The proceeding does not require the applicant to appear in a contested hearing and to justify the materials produced, and the permit holder and the union are not permitted to respond to the show cause notice by attacking in cross-examination and in oral proceedings the content and credit of the witness materials (if any) which the applicant may have placed before the Commission in order to initiate this process. To do so or to permit the permit holder or the union to do so, would be to grant to the permit holder an entitlement which is at odds with the express provisions of the Act, which plainly prescribe that the permit holder and the union are required to respond in writing to the Commission, not to the applicant, within 21 days. To suggest that the permit holder and the union are entitled to a full trial of all the materials upon which the Commission may have had any reliance, is the antithesis of the procedures prescribed by the WHS Act. …. No question of any extended right to a hearing of this matter, or indeterminate issues of natural justice, arise in this instance. That is because the legislation has expressly truncated the entitlement of parties to be heard by prescribing that the Commission may first reach a state of satisfaction under section 138(1) without any form of hearing, which it has in each of the cases under consideration, and that the entitlement of the permit holder to respond to those matters is circumscribed by section 139(2)(a). No further or other entitlement to be heard by any party exists under the legislation and it is therefore to be taken that there is no room for implication that such entitlement should be inferred." [13] Although I have not set out the entire submission, I have excerpted those that enable an understanding of the way the regulator puts his case. [14] Not surprisingly, in their submissions, the respondents focused heavily on the necessity for a tribunal such as this commission to accord to the parties natural justice and, in particular, to provide them with the opportunity to be heard and to put their cases. [15] When the matter resumed on Wednesday 22 October 2014, Mr Herbert opened by stating: "Can I say at the outset, that it has never been contended by the regulator, nor would it be, and nor could it be, in light of the terms of the legislation, that the respondent is not entitled to a hearing or natural justice… Impossible to contend that." 2 2 T1-2, Lines 14-17. -- 7 of 10 -- 8 [16] It seems that the respondents, and I must confess I, had thought that that was precisely what the regulator was contending. That seems to me to be evident from the portions of Mr Herbert's written submissions that I have set out. [17] In any event, following that clarification from the regulator the issues have significantly narrowed and the debate is not whether the rules of natural justice apply to the conduct of these proceedings, but, rather, how they are to be applied. [18] It is trite to say that the rules of natural justice apply to proceedings in this commission 3 unless they have been expressly excluded or modified by legislation: "The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal … But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear" 4 [19] As Mr Docking, counsel for the respondents, submitted, where the Act has contemplated a hearing on the papers it has done so expressly, and prescribed a procedure for so doing.5 [20] Given Mr Herbert's concession that the rules of natural justice have not been excluded by sections 138, 139 or 140 of the Act it is necessary to determine how they are to be applied in order to ensure that procedural fairness is applied when the commission is exercising its powers to consider whether to revoke a WHS entry permit. [21] During his oral submissions Mr Herbert also conceded that it is a matter for the commission to decide how the matters should be conducted. He agreed that it is within the commission's power to conduct an oral hearing if it believes that the interests of justice can only usefully be served by conducting an oral trial.6 Further, that if the commission decides that it needs an oral trial, there's nothing to prevent it from conducting one.7 Sections 274 and 320(2), 320(3) and 320(5) of the Industrial Relations Act 1999 would seem to confirm that that is so. [22] In Salemi v Mackellar (No 2)8 Stephen J observed: "It is, no doubt, now a truism that in cases in which the rules of natural justice are applicable the procedural consequences will not necessarily be uniform. On the contrary they will depend upon what Kitto J. describes, in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 CLR 475, at p 504 , as 'the particular statutory framework' within which they are to apply. But not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in 3 SDAEA v NRA [2005] QIC 44. 4 Twist v Randwick Municipal Council (1976) 136 CLR 106, 109-110. 5 Sections 67C & 67D of the Act. 6 T1-11, Lines 25-30. 7 T1-20, Lines 20-24. 8 Salemi v Mackellar (No 2) (1997) 137 CLR 396. -- 8 of 10 -- 9 relation to whose deliberations they are invoked (Ridge v. Baldwin per Lord Reid (1964) AC, at pp 65, 72), they may also vary from case to case although each be conducted before one and the same tribunal or person." [23] The particular aspect of natural justice with which I am currently concerned is the natural justice hearing rule. As five members of the High Court of Australia held in Saeed v Minister for Immigration and Citizenship: 9 "The concern of that rule is that procedural fairness be applied in the process of decision-making in circumstances where a person's rights or interests may be affected by the decision… It reflects a fundamental principle of natural justice." [24] In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd, Katzmann and Rangiah JJ held: "What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends on the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise … Procedural fairness requires that the statutory power be exercised fairly; that is, in accordance with procedures that are fair to each party in light of the statutory requirements, the interests of the parties and the interests and purposes, whether public or private, which the statute seeks to advance or permits to be taken into account as legitimate considerations." 10 [25] In International Finance Trust Company Limited v New South Wales Crime Commission 11 Heydon J discussed "the centrality of 'hearings'". He said: "One of the primary principles on which the judicial process in this country operates is the principle that before any judicial decision is made which has substantive consequences there generally should be a 'hearing'. A hearing takes place before a judge at a time and place of which the moving party has given notice to the defending party. At it both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for. This aspect of the rules of natural justice pervades Australian procedural law. It has several justifications, and their force is so great that exceptions to the hearing rule in judicial proceedings are very narrow." [26] In the three matters with which I am dealing I think that an oral hearing is necessary. In each case the regulator seeks to rely on the evidence of people who witnessed the conduct of the natural respondents that the regulator contends warrants the revocation of their permits. As matters presently stand that evidence is to be found in the transcripts of unsworn records of interview taken by inspectors and the like with those witnesses, and in the affidavits sworn by the natural respondents. The respondents wish to test the evidence to be relied on by the regulator. That is their 9 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 10 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148, 125 (original footnotes omitted). 11International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49. -- 9 of 10 -- 10 right. There is nothing in the Act that would suggest otherwise. In my view, the "show cause" process relied on by the regulator as detracting from that right does no such thing. In the circumstances, the only way that procedural fairness can be accorded to the parties is to have an oral hearing, conducted in the manner that proceedings are normally conducted in the commission. This will enable the parties to lead the evidence upon which they wish to rely and to test that of their opponents. [27] The parties, in a joint statement provided me with a statement of agreed facts and questions for determination in matters WHS/2014/78 and WHS/2014/79. [28] I have decided that it is not appropriate to answer the questions because it is not necessary to do so. I have determined that in the circumstances of the abovementioned cases, as well as in matter WHS/2014/80, a trial is required and I have made consent directions for the future disposition of those matters. As Mr Docking said, it may well be that in some applications for revocation it might be appropriate, and conform with the principles of natural justice, to deal with a matter "on the papers" or in a manner other than a full trial. It is largely for that reason that I declined to state a case for the Industrial Court of Queensland. -- 10 of 10 --