Eastern Plant Hire Queensland Pty Limited v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 79

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Eastern Plant Hire Queensland Pty Limited v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 079 PARTIES: Eastern Plant Hire Queensland Pty Limited (Applicant) v The Regulator under the Work Health and Safety Act 2011 (Respondent) CASE NO: WHS/2021/199 PROCEEDING: Application for WHS review DELIVERED ON: 10 March 2022 HEARING DATE: 13 December 2021 MEMBER: HEARD AT: O'Connor VP Brisbane ORDER: 1. The application for external review filed in the Industrial Registry on 23 September 2021 is dismissed. 2. I will hear the parties on the question of costs. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – WORK HEALTH AND SAFETY – REVIEWABLE DECISIONS – where Applicant did not seek review of improvement notice within statutory time frame – where request for an extension of time was refused – where Applicant seeks external review of that -- 1 of 10 -- 2 decision – whether a refusal to extend time under s 224(1)(b) is a decision made on internal review – whether a refusal to extend time under s 224(1)(b) is a decision reviewable by the Commission under s 229 of the WHS Act – where judicial review is the only avenue for review of such a decision LEGISLATION: CASES: Judicial Review Act 1991 (Qld) Safety, Rehabilitation and Compensation Act 1988 (Cth) s 37, s 57 Work Health and Safety Act 2011 (Qld) s 223, s 224, s 226, s 229, sch 2A Worker's Compensation and Rehabilitation Act 2003 (Qld) s 542 A Top Class Turf Pty Ltd v Parfitt [2019] 1 Qd R 390 Australian Postal Corporation v Forgie (2003) 130 FCR 279 Blackwood v Pearce [2015] ICQ 12 Jacobs v Woolworths Ltd [2010] 2 Qd R 400 van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161 APPEARANCES: Mr A.D. Scott of counsel, instructed by Mills Oakley Lawyers for the Applicant. Mr P.B. O'Neill of counsel, directly instructed by the Regulator under the Work Health and Safety Act 2011. -- 2 of 10 -- 3 Reasons for Decision [1] Eastern Plant Hire Queensland Pty Limited ('the Applicant') filed an application for external review in the Industrial Registry on 23 September 2021 pursuant to s 229(1)(b) of the Work Health and Safety Act 2011 (Qld) ('WHS Act') in respect of a decision made by the Regulator under the Work Health and Safety Act 2011 (Qld) to reject an application for internal review. [2] The Applicant was issued Improvement Notice I2002144 by the Regulator on 5 July 2021. Pursuant to s224(1) of the WHS Act the application for internal review was required to be lodged on or before 19 July 2021. An application for internal review was subsequently made by the Applicant on 6 August 2021. [3] Section 224 of the WHS Act provides a prescribed time of 14 days for applying to the Regulator for a review. It is not in dispute that the application for internal review was lodged out of time. [4] By letter dated 25 August 2021 the Regulator determined not to extend the legislative timeframe for lodging the application for internal review. Statutory Framework [5] Section 223 of the WHS Act establishes the decisions capable of review. In effect, it establishes the scope of the Commission's jurisdiction under this part of the Act. 223 Which decisions are reviewable (1) The table in schedule 2A states— (a) decisions made under this Act that are reviewable under this part (reviewable decisions); and (b) who is eligible to apply for review of a reviewable decision (the eligible person); and (c) the body (the external review body) on which jurisdiction is conferred to hear and decide an external review relating to a reviewable decision. Note— See, however, section 102D(5) in relation to particular decisions that are taken not to be reviewable decisions under this section. (2) Unless the contrary intention appears, a reference in this part and schedule 2A to a decision includes a reference to— (a) making, suspending, revoking or refusing to make an order, determination or decision; or (b) giving, suspending, revoking or refusing to give a direction, approval, consent or permission; or (c) issuing, suspending, revoking or refusing to issue an authorisation; or (d) imposing a condition; or -- 3 of 10 -- 4 (e) making a declaration, demand or requirement; or (f) retaining, or refusing to deliver up, a thing; or (g) doing or refusing to do any other act or thing. (3) A reference in schedule 2A to a person entitled to a thing means the person from whom it was seized unless that person is not entitled to possess it, in which case it means the owner of the thing. Note— Decisions under a regulation that will be reviewable decisions will be stated in the regulation. [6] Section 224 of the WHS Act sets out the process of making an internal review application: 224 Application for internal review (1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within— (a) the prescribed time after the day on which the decision first came to the eligible person’s notice; or (b) the longer period the regulator allows. (2) The application must be made in the way and in the form required by the regulator. (3) For this section, the prescribed time is— (a) for a decision to issue an improvement notice the period stated in the notice for compliance with the notice or 14 days, whichever is the lesser; and (b) otherwise—14 days. [7] Section 226 prescribes the obligations incumbent upon an internal reviewer when confronted with a 'reviewable decision'. 226 Decision of internal reviewer (1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. (2) The decision may be— (a) to confirm or vary the reviewable decision; or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. (4) The applicant must provide the further information within the time (being not less than 7 days) stated by the internal reviewer in the request for information. -- 4 of 10 -- 5 (5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. [8] Section 229 deals with external review. The 'external body' referred to below is the Queensland Industrial Relations Commission. Section 229(1) relevantly reads: 229 Application for external review (1) An eligible person may apply to the external review body for a review (an external review) of— (a) a reviewable decision made by the regulator; or (b) a decision made, or taken to have been made, on an internal review. Submissions [9] The Applicant submits that the question of jurisdiction rests upon the proper construction of the phrase contained in s 229(1)(b) of the WHS Act.1 The relevant provision reads, 'a decision made, or taken to have been made, on an internal review'.2 [10] It is the Applicant's contention that if the discretion to extend (or indeed not to extend) time for the internal review application is in fact a 'reviewable decision' or 'decision made…by the regulator' within the meaning of s 229(1)(a)-(b), then the Commission has jurisdiction to review the regulator's decision not to extend the period for an internal review in this case. [11] It is contended by the Respondent that the WHS Act does not provide a power to conduct an external review of the Regulator's exercise of the discretion contained in s 224(1)(b) of the WHS Act and as a consequence, the Commission does not have jurisdiction to consider the external review application. [12] The Respondent maintains that the power to seek relief within this context is through a judicial review in the Supreme Court. [13] Submissions from both the Applicant and Respondent draw extensively upon the principles of statutory interpretation. However, the crux of the argument is whether the Commission has jurisdiction if, on the 'correct' reading of the WHS Act, a refusal to extend the time to apply for review as outlined in s 224(2)(b) constitutes either a 'reviewable decision' according to s 229(1)(a) or a 'decision made, or taken to have been made, on an internal review' pursuant to s 229(1)(b). 1 Applicant's outline of submissions filed 26 October 2021 [6]. 2 Work Health and Safety Act 2011 (Qld) s 229(1)(b) ('WHS Act'). -- 5 of 10 -- 6 [14] Mr Scott submitted on behalf of the Applicant that, '…the ordinary reading of the relevant provisions leads to the conclusion that an "internal review" for the purposes of s. 229(1)(b) of the Act is a proceeding initiated by an application for an internal review under s. 224 of the Act and a "Decision made…on an internal review" is a decision made on such an application'.3 [15] In support of that argument, the Applicant submits that the consideration of the explanatory notes of the Work Health and Safety Bill 2011, as a means of establishing the WHS Act to be 'beneficial' legislation would see this interpreted according to the principles commonly ascribed to categories of legislation regarded as 'beneficial legislation'.4 [16] The Respondent is critical of the Applicant's submissions with respect to extrinsic material. Whilst acknowledging that such material plays a role in statutory interpretation, the Respondent reasons that the explanatory memorandum makes clear reference to schedule 2A of reviewable decisions, and that had the Legislature intended for the decision in s 224(1)(b) to be such a decision, it would be included in schedule 2A.5 [17] The submission with respect to 'beneficial interpretation' is also a live issue between the parties.6 The Respondent contends, 'Simply because Part 12 of the Act provides a system of review for decisions or actions taken under the Act does not of itself make the provisions contained in Part 12 beneficial in nature'.7 [18] The Applicant argues that the legislative purpose ought to be considered in the context of the beneficial nature of the legislation which provides entities whose rights have been affected by decisions made under the WHS Act a right to seek external review. In support of that submission, the Applicant relies on Australian Postal Corporation v Forgie.8 In that case, the Full Court of the Federal Court found that an ADJR Act review was available with respect to ss 37(1) and 57(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) because they impliedly required that a decision be made as to whether compensation payments to the person in question were suspended and that decision was a reviewable decision. The Court said: …the beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review.9 3 Applicant's outline of submissions filed 26 October 2021 [6]. 4 Ibid [11]. 5 Respondent's outline of submissions filed 18 November 2021 [39]. 6 Ibid [43]. 7 Ibid [46]. 8 (2003) 130 FCR 279. 9 Ibid 293 [66]. -- 6 of 10 -- 7 [19] The Applicant submitted that this legislative context coupled with the principles of beneficial legislation means that the decision by the Regulator not to extend the time for applying pursuant to s 224(1)(b) is a decision which falls comfortably within the definition of 'reviewable decision', and that the Commission has jurisdiction to hear the application for review pursuant to s 229.10 [20] In Blackwood v Pearce,11 Martin J was called upon the consider the exercise of the Workers' Compensation Regulator to extend time in which to appeal under s 542 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('WCR Act'). His Honour considered to what extent did the fact that the WCR Act is 'beneficial' legislation affect the construction of s 542 of the WCR Act. Relevantly, his Honour wrote: [36] Unlike the legislation considered in Berowra s 542 of the Act does create a right – the right to seek a review – but confines it by reference to a time limit for seeking a review. [37] The liberal interpretation which may be applied when dealing with remedial legislation does not arise unless there is more than one interpretation available or there is uncertainty about the meaning of the words. See Victims Compensation Fund Corporation v Brown and Minister Administering the Crown Lands Act v NSW Aboriginal Land Council. In Cloncurry the concern was not that there was more than one interpretation available, rather it was that the interpretation which was obvious resulted in what was considered to be an unpalatable result. On that basis, the section was given a “liberal interpretation” which resulted in the Regulator being afforded a power which the Act did not, in terms, bestow. Construction of s 542 [38] I regret that I find that I cannot agree with the interpretation arrived at in Cloncurry. [39] While it is correct to categorise the Act as beneficial or remedial legislation, the proper construction is not, by virtue of that unrestrained. It was said in Khoury v Government Insurance Office (NSW): “…the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of "the actual language employed" and what is "fairly open" on the words used.” [40] There is a discretion given to the Regulator to accept an application out of time but “the actual language employed” shows it is clearly confined. There must have been a request under s 542(2) and there must be special circumstances. The Regulator is given a confined power to extend the time in which an application may be made but the construction adopted in Cloncurry ignores the restrictions on that power. [41] The issue has been confused by the consideration of whether an out of time application is invalid. The true issue is not whether an application made out of time is invalid but whether 10 Applicant's outline of submissions filed 26 October 2021 [12]. 11 [2015] ICQ 12. -- 7 of 10 -- 8 the Regulator has any power other than that set out in s 542(2) and (3). The Regulator does not.12 [21] In van der Berg v Simon Blackwood (Workers' Compensation Regulator),13 the Commission considered the discretion to waive time under s 550 of the WCR Act. The Commission concluded: [22] Over time, the interpretation of s 550 of the Act has been infected with the same reasoning as was used in s 542 of the Act. The right under s 550(1)(a) of the Act is confined by reference to a time limit in which to appeal. Section 550 of the Act does not confer a discretion on the Commission to waive compliance. Section 550(3) makes that abundantly clear where it provides "the appellant may, within the periods mentioned in subsections, ask the respondent to allow further time to appeal". [23] Like s 542(3) of the Act, it is the regulator who is vested with the discretion to waive time and not the Commission. In my view, nothing within s 550 grants the Commission the power to waive the time limit. It is the "Respondent" - the Workers' Compensation Regulator that is vested with the power to waive compliance and, only in circumstances where the appellant has asked for an extension within the statutory time limit. [24] For the reasons advanced above, I am of the opinion that there is no power vested in the Commission to waive compliance with the time limit contained in s 550(1)(a) of the Act in circumstances where there has been substantial compliance or other special circumstances. There is not legislative basis for such an interpretation. [22] Submissions for the Applicant briefly canvassed the possibility of judicial review, arguing that having judicial review as the sole avenue to review a decision not to extend the time for an application, where many other decisions in that same division and part of the Act are reviewable would be 'odd'.14 The Applicant argued that it would be perplexing if the only avenue for review was the 'more expensive and restrictive avenue' of judicial review in circumstances where there is otherwise a general right to obtain merits review of a decision on internal review.15 [23] Mr O'Neill drew the Commission's attention to the Workers' Compensation Scheme and authorities related to the Workers' Compensation legislation. Those provisions which allow a discretion to extend the time for an application are reviewable only by way of judicial review.16 [24] Arguing by analogy he submitted that it is open for the Commission to find that the same limitations on jurisdiction present under the Workers' Compensation regime are present with respect to a decision not to extend under s 224(1)(b).17 In that regard, the Regulator 12 Ibid [36]-[41]. 13 [2015] QIRC 161. 14 Ibid [13]. 15 Ibid. 16 TR 1-11, LL 1-9. 17 Respondent's outline of submissions filed 18 November 2021 [32]. -- 8 of 10 -- 9 relies upon two authorities to support this proposition: Jacobs v Woolworths Ltd,18 and A Top Class Turf Pty Ltd v Parfitt.19 [25] In short, the Respondent contends that there is no reviewable decision made, thus no internal review, and consequently no power to seek external review pursuant to s 229.20 Consideration [26] It is accepted that Part 12 of the Act sets of the structure for the undertaking a review of a decision made or actions taken under the powers under the WHS Act. [27] The legislative scheme provides that s 223 and Schedule 2A of the WHS Act identify which decisions are reviewable under Part 12; who is eligible to make an application for review of a review able decision; and the body that is invested with the jurisdiction to hear and determine an external review arising out of a reviewable decision. [28] What is evident from Schedule 2A is that a decision made by the regulator pursuant to s 224(1)(b) to decline to extend time in which to lodge an application for internal review is not a matter which is included within the Schedule as a reviewable decision. [29] The Applicant argues that an 'internal review' for the purposes of s 229(1)(b) of the Act is a proceeding initiated by an application for an internal review under s 224 of the Act and a 'decision made...on an internal review' is a decision made on such an application. I do not accept that interpretation. [30] It is contended by the Respondent that a fundamental flaw in the application is the fact that no internal review was undertaken of the inspector's decision. The Respondent contends that 'a decision made on an internal review', requires that for the jurisdiction for an internal review to be enlivened there must have been an internal review undertaken. As a consequence, s129(1)(b) has no application. [31] The words 'a decision taken to have been made on an internal review' addresses, in my view, the circumstances contemplated by s 226(6) of the Act in which the reviewable decision is not varied or set aside within a 14 day period; that is a failure to make a decision which is then deemed to be a confirmation of the original decision by the internal reviewer. By accepting this interpretation, s 129(1)(b) cannot be relied upon to ground jurisdiction for the Commission to embark upon an external review for an application for internal review which has been lodged out of time. 18 [2010] 2 Qd R 400. 19 [2019] 1 Qd R 390. 20 TR 1-11, LL 10-13. -- 9 of 10 -- 10 [32] Under s 229(1)(b) of the WHS Act there must be some decision made on internal review, whether it is an actual decision or a deemed decision, to enliven the jurisdiction of the Commission to conduct a review. [33] If an application for internal review is not filed within the prescribed time limit in section 224(1) of the Act, or if filed outside the prescribed time and there is no waiver of the time limit under s 224(1)(b), there is no application for the Regulator to consider on internal review. [34] It follows then that where an application is filed out of time, the Regulator must decide that point before proceeding to any other decision. [35] In the current context, the right to seek external review is constrained first by the type of decision that can be reviewed; and secondly by the time limitation in s 224 of the WHS Act. [36] The Regulator decided the time limit point against the Applicant and did not proceed to consider the internal review. [37] Like ss 542 and 500 of the WCR Act, it is the Regulator for the WHS Act who is vested with the discretion to waive time under s 224(1)(b) of the WHS Act and not the Commission. I accept the argument that if the Applicant is dissatisfied with the manner in which the Regulator has exercised the discretion under s 224(1)(b) then it may avail itself of the Judicial Review Act 1991 (Qld). [38] For the reasons advanced above, I have come to the conclusion that the WHS Act does not provide the Commission with the power to undertake an external review of a decision of the Regulator exercising a discretion under s 224(1)(b) of the WHS Act to allow an extension of time. Order 1. The application for external review filed in the Industrial Registry on 23 September 2021 is dismissed. 2. I will hear the parties on the question of costs. -- 10 of 10 --