BBC Hardware Limited v Henneken & Anor [2006] QSC 149

SUPREME COURT OF QUEENSLAND CITATION: BBC Hardware Limited v Henneken & Anor [2006] QSC 149 PARTIES: BBC HARDWARE LIMITED (applicant) v PETER HENNEKEN DIRECTOR-GENERAL OF THE DEPARTMENT OF INDUSTRIAL RELATIONS (first respondent) STATE OF QUEENSLAND (second respondent) FILE NO/S: BS11378 of 2004 DIVISION: Trial PROCEEDING: Application for a statutory order of review DELIVERED ON: 22 June 2006 DELIVERED AT: Brisbane HEARING DATE: 2 March 2006 JUDGE: Mullins J ORDER: Application dismissed CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS – application for statutory order of review of decision rejecting application for enforceable undertaking under s 42D Workplace Health and Safety Act 1995 (Qld) – where respondent accepted enforceable undertaking pertaining to same two incidents from another party who was prosecuted in respect of those incidents – whether respondent required to consider level of responsibility of other party for incidents when deciding whether to accept an enforceable undertaking from the applicant - whether the respondent’s decision to take into account the applicant’s primary responsibility for each incident was an error of law – whether the respondent was required to accept the enforceable undertaking from the applicant where the respondent accepted the enforceable undertaking from the other party Workplace Health and Safety Act 1995 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 -- 1 of 10 -- 2 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Pickering v Deputy Commissioner of Taxation (1997) 37 ATR 41 Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121 COUNSEL: JA Griffin QC and RJ Clutterbuck for the applicant JA Logan SC and AAJ Horneman-Wren for the respondents SOLICITORS: Lander & Rogers for the applicant CW Lohe, Crown Solicitor for the respondents [1] MULLINS J: The applicant seeks to review the decision of the first respondent made on 19 October 2004 to reject the application by the applicant for an enforceable undertaking pursuant to Part 5 of the Workplace Health and Safety Act 1995 (“the Act”). The first respondent provided reasons for the decision (“the reasons”) to the applicant on the same date. [2] The applicant made two applications to the Department of Industrial Relations on 22 March 2004 to give enforceable undertakings under s 42D of Part 5 of the Act in respect of alleged contraventions of s 24(1) of the Act for which prosecutions were commenced against the applicant in December 2002. An enforceable undertaking which is accepted by the chief executive has the effect of extinguishing any prosecution for the alleged contravention. [3] The two applications related to two incidents which had occurred in 2002 at the premises of the applicant at 54 Caloundra Road, Caloundra where the applicant was conducting a hardware store and a frame and truss fabrication plant. The applicant had been purchased by Bunnings Building Supplies Pty Ltd in September 2001, but the premises continued to be operated under the BBC Hardware business name and the system of work for loading trucks that was in place in September 2001 was continued. First incident [4] The first incident occurred on 21 January 2002 and involved Mr Maxwell Tranter an employee of C Road Transport (“Croad”). Croad is a small transport company carried on by Mr and Mrs Croad that was providing transport services on a contract basis to the applicant. Mr Tranter commenced employment as a truck driver with Croad on 1 October 2001. As part of his duties, Mr Tranter regularly attended at the applicant’s premises in his employer’s truck to pick up roofing frames, trusses and jacks which were manufactured by the applicant and then transported them for the applicant to building sites around the Sunshine Coast. [5] The description of the first incident is set out in the reasons at paragraph 1.2: “On that date, Mr Maxwell Kelvin Tranter, a truck driver in the employ of C Road Transport, attended the premises of BBC Frames and Trusses (BBC Hardware Limited) at Caloundra to pick up roofing frames, trusses and jacks. Mr Tranter was standing on the tray of the truck directing Mr Geoffrey Marks, an employee of BBC -- 2 of 10 -- 3 Hardware Limited who was operating a Toyota forklift, where to place the load of trusses. Mr Marks was using the forklift tynes to lift the trusses into position. Mr Tranter was standing on the half trusses already loaded on the rear of the truck when Mr Marks presented the load of jacks. The jacks were unstable on the tynes and Mr Tranter took hold of the jacks in order to stabilise the bundle. The bundle of jacks tipped and fell towards Mr Tranter. Mr Tranter moved to get out of the way, however his foot became caught in the ‘v’ section of one of the half trusses on the back of the tray. Mr Tranter fell backwards from the side of the truck and landed on the ground.” [6] Mr Tranter suffered a fracture of the distal shaft of the right tibia that required surgical pinning and a fracture of the proximal fibula and an undisplaced fracture of the left acetabulum. [7] According to the Department’s investigation of the first incident, prior to loading the truck, Mr Tranter had discussed briefly with Mr Marks where the trusses and jacks should be placed on the back of the truck, but Mr Tranter did not instruct Mr Marks on how he was to use the forklift in carrying or placing the trusses. According to Mr Marks, the size of the load and the way the load was packaged was determined by the applicant. [8] Mr Croad told the Department’s investigator that after the first incident he undertook his own investigations of why it happened and, as a result, issued instructions to drivers to roll jacks or trusses away from where they were standing. According to the applicant, the site did not have proper occupational and safety measures in place at the time of purchase and existing practices relating to loading and unloading procedures were under review and preventative measures such as safe loading and unloading procedures, traffic management and contractor safety induction were being considered by the applicant’s site production manager when the second incident occurred. Second incident [9] The second incident occurred on 24 June 2002 and involved Mr Leigh Giles, another employee of Croad, who was also engaged to drive Croad’s trucks in collecting orders from the applicant’s premises and delivering them for the applicant. The second incident is described in the reasons at paragraph 1.4 as: “At approximately 3.00pm on that date Mr Leigh Giles, a truck driver in the employ of C Transport (sic), attended the premises of BBC Frames and Trusses (BBC Hardware Limited) at Caloundra to pick up roofing frames, trusses and jacks. Mr Giles was standing on the back of the semi-trailer supervising the loading and directing the operator of the forklift, Mr Geoffrey Marks, to push a load of jacks with the tynes of the forklift. Mr Giles recalls being pushed backwards and falling off and over the side of the semi-trailer float. The distance he fell was approximately 1.2 metres over the side of the semi-trailer float.” -- 3 of 10 -- 4 [10] Mr Giles sustained grossly comminuted fractures of the radial and ulna bones in both wrists with deformity and the fractures of both wrist joints. Prosecutions [11] Each of the prosecutions against the applicant proceeded on the basis that the applicant was a person on whom a workplace health and safety obligation prescribed by s 28(2) of the Act was imposed who failed to discharge the obligation contrary to s 24 of the Act. Each complaint alleged that the applicant failed to ensure the workplace health and safety of others was not affected by the way the applicant conducted its undertaking and that in each case the source of the risk emanated from loading timber at height. [12] Mr Croad was also charged in relation to each of the incidents under s 24 of the Act, but in respect of failing to discharge the obligation as employer imposed by s 28(1) of the Act. Relevant legislation [13] Section 28 of the Act provides: “(1) An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work. (2) Also, an employer has an obligation to ensure his or her own workplace health and safety and the workplace health and safety of others is not affected by the way the employer conducts the employer’s undertaking.” [14] Part 5 of the Act which deals with enforceable undertakings commenced on 1 June 2003. Under s 42D of the Act a “workplace health and safety undertaking” is defined to mean a written undertaking made by a person that recognises that the chief executive alleges that the person has, relevantly, contravened s 24(1) of the Act and identifies facts and circumstances of the alleged contravention and includes an assurance from the person about that person’s future behaviour. Section 42E of the Act provides: “(1)The chief executive may, by written notice given to the identified person for a workplace health and safety undertaking, accept the workplace health and safety undertaking. (2) When the chief executive accepts the workplace health and safety undertaking, the undertaking— (a) starts operating; and (b) becomes enforceable against the identified person. (3) The chief executive may publish details of the undertaking.” [15] The Department developed a number of principles and considerations as applicable for determining when an enforceable undertaking would be accepted. Those principles and considerations were set out in a document entitled “Information for Applicants” published by the Department in February 2004 by reference to which the applicant prepared its draft of the enforceable undertaking to cover both incidents. The applicant’s solicitor also liaised with an officer of the Department in relation to the content of the enforceable undertaking proposed by the applicant. First respondent’s decision -- 4 of 10 -- 5 [16] The first respondent has deposed to what documents he had before him when he considered the applicant’s proposed enforceable undertaking. He had the draft enforceable undertaking, the summary of facts prepared by the Department in relation to each of the incidents, the evaluation matrix prepared in relation to the application and the briefing note prepared by an officer of the Department, namely Ms Bertram who held the position of general manager, Workplace Health and Safety Queensland (“the general manager”), in relation to the application. [17] The applicant’s proposed enforceable undertaking was an extensive document containing 104 numbered paragraphs and addressing the principles and considerations that the Department had circulated in its information booklet as being relevant for the purpose. The proposed undertaking set out the background to the offences and dealt with the steps that the applicant had taken after the second incident. The applicant had engaged an independent consultant to conduct a review and audit of the occupational safety system for the frame and truss section and its compliance with the relevant Australian standard for occupational health and safety (“the standard”) that identified deficiencies in the area of risk assessment and hazard identification at the subject premises. The proposed undertaking then set out the new hazard assessment and control policies implemented by the applicant at the subject premises and a future action plan that applied to all matters of workplace health and safety for its employees and at its premises, including developing a new truck loading procedure in respect of which all 40 employees of the applicant at the site would be trained. Another consultant was engaged by the applicant on an on- going basis to assist in and ensure that the applicant complied with the standard and the new occupational health and safety management systems. The applicant proposed that, unless otherwise specified in the undertaking in the enforceable undertaking, all undertakings given by the applicant would be completed within 12 months of the signing of the enforceable undertaking. [18] The practice within the Department (which was followed in the case of the applicant) was for any proposed enforceable undertaking to be forwarded with a summary of the facts alleged in the complaint to which the undertaking relates to the “enforceable undertakings evaluation team” (“the Committee”) which is a committee constituted in the ordinary course of the administration of the Act by the Department to provide advice to the first respondent in relation to applications for enforceable undertakings. The Committee comprises the general manager and two other persons drawn from an panel of four persons not employed within the Department, but who have long associations and experience with workplaces, particularly in relation to workplace health and safety. The Committee prepares a report which is referred to as an evaluation matrix which sets out the Committee’s findings and a recommendation either to accept or reject the application for the enforceable undertaking. The briefing note contains a summary of all the relevant information and a recommendation in respect of accepting or rejecting the application for the enforceable undertaking. [19] The evaluation matrix prepared in respect of the applicant’s proposed enforceable undertaking was also an extensive document. It assessed the proposed enforceable undertaking by reference to the degree of compliance with legislative requirements, other considerations and the Department’s stated principles, and incorporated submissions made by the Director of the Department’s Legal and Prosecution Services and the Department’s Regional Manager. The conclusion reached by the Committee was: -- 5 of 10 -- 6 “The system of work for loading trucks was determined by the entity in control of the workplace BBC Hardware Limited. Bunnings Pty Ltd (the applicant) purchased BBC Hardware Limited (and the site) in September 2001. The applicant adopted the system of work for loading trucks implemented by the previous owners. Both events occurred in almost identical circumstances. Given the circumstances, and the lack of appropriate or adequate control measures after the first event, the Evaluation Committee is unable to recommend favourable consideration be given to this applicant.” The Committee therefore recommended that the first respondent reject the applicant’s proposed undertaking, as it did not offer the best enforcement outcome in the circumstances of the case. [20] The briefing note also set out the background to the making of the application by the applicant, the opinion of the Committee and recommended that the first respondent consider the findings of the Committee, and consider the application for an enforceable undertaking and reject it. [21] In the reasons, consistent with the findings of the Committee, the first respondent found that the applicant’s application met each of the stated principles published by the Department. The first respondent in reaching the decision to reject the applicant’s offer of an enforceable undertaking noted, however, that he also took into account the matters set out in paragraph 5.7 of the reasons which were: “The objective gravity of these incidents and their consequences; Upon the site being sold in September 2001, no review of the system of work for loading trucks implemented by the previous owners was considered or implemented by Bunnings Pty Ltd; By its nature, the loading and unloading of large and/or heavy items onto and off trucks present hazards to workers. Although the circumstances of the incidents involved specific hazards the system of work contributed significantly to the cause of both incidents; Whilst a sub-contract transport company employed both Messrs Tranter and Giles, the system of work for loading the trucks was devised and maintained by BBC Hardware Limited. BBC Hardware Limited had a primary responsibility to ensure the safety of its workplace and to the injured workers. After the first incident, the hazard should have been identified and appropriate control measures put in place. With the event of the second incident in similar circumstances and within only six (6) months of the first incident, it is of concern that there was a failure to monitor and review procedures after the first incident in any effective way.” [22] On the same day that the first respondent made his decision in respect of the applicant’s application, he decided to accept an enforceable undertaking from Croad. In dealing with the applicant’s application, the first respondent made no reference to Croad’s application for an enforceable undertaking or his decision to accept Croad’s undertaking. -- 6 of 10 -- 7 [23] The application for an enforceable undertaking by Croad proceeded separately from the applicant’s application. The proposals in Croad’s undertaking for improving its workplace health and safety were considerably less extensive than proposed by the applicant, but were related to the size and nature of Croad’s business which consisted of Mr and Mrs Croad and a couple of employed truck drivers. The Committee had also prepared an evaluation matrix in respect of Croad’s application, but recommended to the first respondent that he accept the proposed undertaking from Croad, as it offered the best enforcement outcome in the circumstances of the case. Unlike the conclusion reached by the Committee in respect of the applicant’s proposed enforceable undertaking that there were no mitigating circumstances, the Committee in the evaluation matrix for Croad’s application considered the fact that Croad was a partnership where its finances were intertwined with the personal circumstances of Mr and Mrs Croad who together with their drivers would be adversely affected by expected downturns in the building industry as a mitigating circumstance. [24] The first respondent gave reasons for his decision to accept the Croad undertaking which were dated 19 October 2004 and were exhibit 1 at the hearing of this proceeding. The first respondent noted that the proposed undertaking met with the stated principles published by the Department and noted in paragraph 5.9 of those reasons that he had also taken into account the following matters: “the objective gravity of both incidents and their consequences; the control measures put in place after the first incident were of an administrative nature only and were not sufficient; the nature of working on truck trays in the transport industry and the need to implement control measures to prevent falls; the acceptance of an enforceable undertaking as providing an effective vehicle to produce longer term Workplace Health and Safety improvements in the particular circumstances of this matter.” Grounds for application [25] The applicant summarised its grounds for making the application as follows: (a) The decision was made in bad faith; (b) The decision was an improper exercise of the power conferred upon the first respondent; (c) The first respondent placed no or little importance upon relevant matters; and (d) The first respondent took into account irrelevant matters in arriving at the decision and failed to consider relevant matters. [26] At the hearing, the applicant’s submissions focused primarily on two issues: (a) The failure of the first respondent to address the relative responsibility of each of the applicant and Croad for the incidents; and (b) Whether the first respondent could refuse to accept the enforceable undertaking from the applicant, where the first respondent had accepted or intended to accept the enforceable undertaking from Croad. Relative responsibility for the incidents [27] It was submitted on behalf of the applicant that the reference in the first respondent’s reasons to the applicant having “a primary responsibility to ensure the -- 7 of 10 -- 8 safety of its workplace and to the injured workers” did not address the issue of the responsibility of the applicant, as compared with Croad, which it was submitted that the first respondent was required to do. It was also submitted that if the first respondent was making a finding that the applicant had a greater responsibility for the safety of the workers who were injured than Croad, that was an error of law. [28] The applicant’s application for an enforceable undertaking was made by submitting a draft enforceable undertaking to the Department that was modified from time to time to reflect the discussions between an officer of the Department and the applicant’s solicitor. The proposed enforceable undertaking that was considered by the first respondent did not deal with the relative responsibility of each of Croad and the applicant for the two incidents. Not surprisingly, the applicant’s proposed enforceable undertaking concentrated on its activities at its premises and its proposals for improving workplace health and safety of its own employees and for others including contractors who were on site and affected by how the applicant conducts its business. The first respondent made the decision on the applicant’s proposed enforceable undertaking by reference to the applicant’s role in the incidents and the proposals of the applicant for its future behaviour. That did not necessarily require a conclusion by the first respondent as to the comparative responsibility of the applicant and Croad for the two incidents. There is nothing in s 42E of the Act or any related provisions that bound the first respondent in deciding whether to accept an enforceable undertaking from the applicant in the circumstances of this matter to take into account the relative responsibility of the applicant and Croad for the two incidents. The ground of review which is based on the failure of the first respondent to address the relative responsibility of each of the applicant and Croad for the incidents must fail: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40. [29] The applicant sought to analyse the responsibility of Croad and itself for the two incidents by comparing the content of the respective statutory obligations under s 28(1) and (2) of the Act to which each was subject. That was a sterile exercise in the absence of considering those statutory obligations in the light of the actual circumstances of the incidents. In any case, the first respondent’s decision on whether to accept the applicant’s enforceable undertaking involved a consideration of many more matters than those directly relating to the breaches of the statutory obligation which gave rise to the prosecutions brought by the Department against the applicant. Critical to the first respondent’s decision in respect of the applicant’s proposed enforceable undertaking was the fact that the system of work for loading the trucks at the applicant’s premises was devised and maintained by the applicant. Each incident was related to the operation of the applicant’s forklift by the applicant’s employee in placing goods that had been sold by the applicant on Croad’s truck where directed by Croad’s employed driver for delivery on behalf of the applicant. Having regard to the applicant’s role in the incidents, it cannot be concluded that it was not reasonably open for the first respondent to conclude that the applicant had “a primary responsibility to ensure the safety of its workplace and to the injured workers”. There was no error of law involved in that conclusion of the first respondent: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356. Unequal treatment -- 8 of 10 -- 9 [30] It was submitted on behalf of the applicant that the duty of fairness requires the exercise of statutory powers and discretions occur in like manner in relation to parties who situations are not relevantly distinguishable from each other. Reliance was placed on a number of authorities including Pickering v Deputy Commissioner of Taxation (1997) 37 ATR 41, 48-49 and Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121, 130-132. [31] The respondents accepted, as a matter of law, that a decision maker had a duty to act fairly in respect of like matters, but submitted that there was nothing on the facts before the first respondent that compelled the conclusion that the applicant’s circumstances were identical to those of Croad. [32] There are so many points of distinction between the position of the applicant and the position of Croad in relation to the respective applications for enforceable undertakings that the applicant fails in its attempts to show that the first respondent was required to make the same decision in relation to the applicant’s application as it did for Croad’s application. [33] Apart from the different roles that each played in the circumstances that resulted in the incidents, the size, nature and resources of the respective operations of the applicant and Croad are vastly different. That is exemplified by the differing terms of the enforceable undertakings proposed by each of them. After the first incident Croad did make some attempt to investigate the incident and take remedial action, although it was ineffective. In contrast, the applicants through its new owner appreciated from the time of acquisition of the applicant’s business in September 2001 that there were deficiencies in the occupational health and safety procedures at the site, but did not make any changes to the procedures pending a review of them which was being undertaken when the first incident occurred and was still being undertaken when the second incident occurred. Other grounds [34] The other grounds for review are based in one way or another on the claim by the applicant that the first respondent in considering whether to accept the applicant’s enforceable undertaking failed to take into account his decision to accept the enforceable undertaking from Croad. That was not a consideration that the first respondent was bound under the Act to take into account in making his decision on the applicant’s application. When the first respondent’s decision is analysed by reference to the issues that were raised by the applicant’s proposed enforceable undertaking, there is no substance whatsoever in the allegations made against the first respondent that he acted in bad faith or did not accord procedural fairness to the applicant or failed to take into account a relevant consideration by not giving the applicant notice of his intention to accept Croad’s undertaking or addressing in his decision on the applicant’s application the fact that he was proposing to accept an enforceable undertaking from Croad. [35] Although the respondents conceded that the first respondent’s decision to reject the applicant’s proposed enforceable undertaking was reviewable, they argued that the decision was intertwined with a prosecutorial discretion and that sounds “an especially cautionary note about the reticence that should attend the judicial review of an administrative value judgement as to whether or not to accept an enforceable undertaking”. The applicant submitted that it would be incorrect to characterise the -- 9 of 10 -- 10 first respondent’s decision as one relating to the administration of criminal justice, as the acceptance of an enforceable undertaking has other consequences apart from its impact on the prosecution. [36] As is apparent from these reasons, I have determined the application on the basis of the law that governs the judicial review of a reviewable decision. It has been unnecessary to consider the applicability of or to apply the cautious approach suggested by the respondents. Conclusion [37] It follows that the applicant has been unsuccessful in establishing any of the grounds relied on for review of the first respondent’s decision and the application should be dismissed. I will hear the parties on the appropriate costs order. -- 10 of 10 --