REVIEW OF NOTICE - S.51A - OSH ACT THE WORK HEALTH AND SAFETY TRIBUNAL CITATION : 2022 WAIRC 00638 CORAM : Commissioner T Emmanuel HEARD : Wednesday, 17 August 2022 DELIVERED : MONday, 29 August 2022 FILE NO. : OSHT 4 OF 2021 BETWEEN : Consolidated Pastoral Company Pty Ltd Applicant AND WorkSafe Western Australia Commissioner Respondent CatchWords : Work Health and Safety Tribunal – Objection to discovering documents – Document categories requested too broad and relate to matters not yet before the Tribunal – Objection to discovery upheld Legislation : Industrial Relations Act 1979 (WA): s 27(1)(o) Work Health and Safety Act 2020 (WA): Schedule 1, cl 29 Result : Objection to discovery upheld Representation: Applicant : Mr S Vandongen SC (of counsel) Respondent : Mr T Pontre (of counsel) Cases referred to in reasons: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 Compagnie Financière et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655 === REASONS FOR DECISION === ¶1 On 2 September 2020, a WorkSafe Western Australia inspector (Inspector) issued Improvement Notice 90014939 (Notice) to Consolidated Pastoral Company Pty Ltd (CPC). ¶2 The Notice identified that CPC employees are ‘exposed to a hazard, namely riding a horse without a helmet which may result in the rider falling from a horse and receiving impact to the head which could lead to serious injury or death.’ ¶3 On 7 May 2021, CPC referred the Notice to the Tribunal for further review. The Tribunal issued programming orders, including that each party provide documents or materials requested by the other, unless the party objects to provision of any of the documents requested, in which case such an objection should be made by that party filing a Form 1A application with the Tribunal. ¶4 The parties requested and were granted multiple extensions of time to comply with the programming orders. In March 2022, CPC filed a Form 1A, objecting to the provision of documents requested by the WorkSafe Commissioner. In April 2022, this application was reallocated to me and the discovery question was programmed for hearing. After the parties requested and were granted several extensions of time to comply with these programming orders, the discovery question was listed for hearing on Wednesday 17 August 2022 to accommodate the parties’ availability. ¶5 The WorkSafe Commissioner requested discovery of four categories of documents from CPC. ¶6 There is a dispute about the breadth of documents sought. CPC objects to providing documents in category number 1, which is: All records or documents relating to injuries sustained by any of the Applicant’s staff in the course of working with horses since 1 January 2016. Relevant discovery principles ¶7 Under s 27(1)(o) of the Industrial Relations Act 1979 (WA) (IR Act), the Commission has the power to ‘make such orders as may be just’ with respect to the discovery, inspection or production of documents. Section 27 of the IR Act applies to the exercise of the jurisdiction of this Tribunal: cl 29 of Schedule 1 of the Work Health and Safety Act 2020 (WA). ¶8 Discovery is not available as of right. The party seeking discovery must establish that it is just for the order to be made and necessary for the fair disposal of the case. ‘Just’ means ‘right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right’: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801, 1805. ¶9 At common law a document will be discoverable if it relates to a matter in question, as set out in Compagnie Financière et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 at 63: It seems to me that every document relates to matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable to the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences… ¶10 The Tribunal must consider: 1. do the documents relate to a matter in question, and if so; 2. would it be just to order discovery? [Substantive application before the Tribunal] ¶11 CPC has made an application to the Tribunal under s 51A of the Occupational Safety and Health Act 1984 (WA) (OSH Act). It seeks a review of the Inspector’s decision to issue the Notice and of the WorkSafe Commissioner’s decision to affirm the Notice. ¶12 As set out in the reasons of the Full Bench in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655 (GHD) at [31]: This requires, as the Tribunal correctly posited, that the Tribunal examine whether, on the facts and circumstances in existence at the material time, [the Inspector] was justified in forming the opinion that he did, in issuing the Improvement Notice to the appellant. In effect, the Tribunal “stands in the shoes” of the Inspector. Based on the evidence before the Tribunal, including any expert evidence a party may adduce, or the Tribunal itself arranges to be placed before it, the Tribunal is required to find for itself, whether it can form the opinion formed by the Inspector, that led to the issuance of the Improvement Notice: Wormald Security Australia Pty Ltd v Peter Rohan Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2 at 4 per Franklyn J (Ipp J agreeing). In proceedings before the Tribunal, there is no onus on the recipient of a notice issued under the OSH Act, on an application to review, to establish that the notice should not have been issued and should be revoked: Wormald per Franklyn J at 4 and Nicholson J at 11. ¶13 At this early stage of proceedings there is limited material before the Tribunal in relation to the substantive application. Only CPC’s Form 6 Referral has been filed. The referral has seven attachments, including the Notice, a Prohibition Notice and its review, the requests to the WorkSafe Commissioner for a review of the Notice, correspondence between the parties about the WorkSafe Commissioner’s review and a letter from the WorkSafe Commissioner explaining his decision to affirm the Notice with modifications. ¶14 In the substantive application, the Tribunal must decide whether the Inspector was justified in forming the opinion that she did in issuing the Notice to CPC. That is the matter in question. In the circumstances, a document will be discoverable if it relates to the Inspector’s opinion. [What is the Inspector’s opinion?] ¶15 The Inspector issued the Notice on 2 September 2020. The Notice is two pages long. The Inspector completed page one as follows: 1. In relation to: Riding of horses without wearing equestrian safety helmets at CARLTON HILL STATION KUNUNURRA 6743 on 02 Sep 2020. I have formed the opinion that in circumstances that make it likely that the contravention will continue or be repeated, you have contravened section 19(1) of the Occupational Safety and Health Act 1984 and the grounds for my opinion are: See Attachment Improvement Notice. You are required to remedy the above by no later than 14 Oct 2020 at 1700 hours. 2. You are directed to take the following measures: It is practicable to provide all employees who ride horses with an Australian Standard approved equestrian helmet [or an equestrian helmet equalling or exceeding AS/NZS3838:2006], and require those employees to wear such a helmet at all times when riding a horse. ¶16 Page two is headed ‘Attachment Improvement Notice’. It says: My discussions with Mr Ian Florence, WHS Manager, identified that Consolidated Pastoral Company Pty Ltd (CPC) is the employer of employees at this workplace. I have read the CPC Horse Handling Operational Policy dated 11 November 2019 which states a rider may be assessed by a Manager as being competent to ride without wearing an equestrian safety helmet when undertaking work activities on horseback. My discussions with Mr Florence on 1 September 2020 also confirmed that since the cancellation of Prohibition Notice P90014635 by the WorkSafe Commissioner, CPC has returned to the application of the CPC Horse Handling Operational Policy where currently some riders are not wearing helmets while riding. As a result of this policy implementation, these employees are being exposed to a hazard namely riding a horse without a helmet which may result in the rider falling from a horse and receiving impact to the head which could lead to serious injury or death. Based on my industry experience and my research into the use of equestrian safety helmets during horse related activities, I have formed the opinion that the company has failed to provide a working environment where employees are not exposed to the hazard and it would be practicable for CPC to require all employees to wear a helmet at all times whilst riding a horse in the workplace. ¶17 The parties agree that the Inspector’s opinion is: As at 2 September 2020, at Carlton Hill Station, CPC has contravened s19(1) of the Occupational Safety and Health Act 1984 (Act), in circumstances that make it likely that the contravention will continue or be repeated. The contravention arises because some employees of CPC are being exposed to a hazard, namely “riding a horse without a helmet which may result in the rider falling from a horse and receiving impact to the head which could lead to serious injury or death”, in circumstances in which it is reasonably practicable to provide a working environment such that those employees are not exposed to that hazard, in particular by requiring all employees to wear a helmet at all times whilst riding a horse in the workplace. [Category number 1] [CPC’s submissions] ¶18 CPC says that this category of documents is too broad. There is no logical link between all horse-related injuries and the hazard. The WorkSafe Commissioner seeks documents relating to all of CPC’s employees, not just those employed at Carlton Hill Station where the contravention of s 19(1) of the OSH Act is said to have taken place. Documents that relate to workplaces other than Carlton Hill Station are irrelevant. ¶19 This is because at its core, the Inspector’s opinion is about: a. contravention of s 19(1) of the OSH Act; b. at Carlton Hill Station; c. based on the hazard; d. in circumstances where practicable measures could have been taken but were not taken. ¶20 CPC says the hazard is said to arise at a particular workplace and in particular ways (in all of those ways), namely: a. riding a horse; b. falling from a horse while riding; c. impact to the head as a result of falling from the horse; d. at Carlton Hill Station. ¶21 From the Inspector’s opinion, the practicable measures involve: a. all employees; b. wear a helmet; c. at all times when riding a horse at Carlton Hill Station. ¶22 Accordingly, CPC argues that whether a document is discoverable will depend on whether it relates to the issues set out from [19] – [21]. ¶23 CPC accepts that records and documents relating to head injuries sustained by employees as a result of falling from horses while riding horses at Carlton Hill Station are discoverable. The Tribunal understands that CPC agrees to discover records and documents of that type. ¶24 CPC says it is impossible to see how records or documents relating to any injuries sustained by any of its staff in the course of working with horses could inform the Tribunal’s assessment of the particular hazard and impacts of practicable measures in the context of the question before the Tribunal. Because of how the hazard is identified in the Notice, it is limited to impacts caused directly by a fall and CPC should not be required to discover documents that are beyond the confines of the specific hazard and practicable measures. The Tribunal should not order discovery of the documents in category number 1. [The WorkSafe Commissioner’s submissions] ¶25 I understand the WorkSafe Commissioner’s submission to be that he broadly agrees with CPC’s submission set out from [19] – [21] except in relation to [20c]. He says that the Inspector’s opinion contemplates that there be a fall from a horse and impact to the head, but it is not clear from the Inspector’s opinion that impact to the head must be as a result of falling. Impact to the head could be in association with a fall, for example being kicked or trampled. ¶26 The WorkSafe Commissioner says that records or documents about injuries sustained generally in the course of working with horses are relevant because they demonstrate the unpredictability of horses and in turn the prevalence of falls from horses. At the hearing the WorkSafe Commissioner said: The Tribunal will be helped in determining the risk of a head injury resulting from a fall if the Tribunal knows something about the total number of injuries because it must be smaller than that total number. So there is some relevance in that very direct way… the Tribunal might be assisted by knowing about the causes of those broader injuries. So those broader injuries might be caused by reasons which are relevant to the kinds of injuries that are specifically an issue, that is head injuries or falls. If for instance those broader injuries are caused by unpredictability of horses, that may tell the Tribunal something about the risk of specifically falls from horses and specifically head injuries if they result from that same cause. Similarly, the documentation may reveal whether or not the injuries are the result of operator error or operator inexperience, and again that may assist the Tribunal to determine the risk of head injury and head injuries resulting from falls. ¶27 The WorkSafe Commissioner says that because CPC says that it manages the hazard by taking a holistic approach across its workplaces, documents and records that relate to other CPC stations are relevant to assessing the effectiveness of CPC’s mitigation efforts at Carlton Hill Station. As a result, the Tribunal should order discovery of the documents in category number 1. [Consideration] [Are the documents discoverable?] ¶28 The substantive application is a reference to the Tribunal under s 51A of the OSH Act of the WorkSafe Commissioner’s decision made under s 51(6) of the OSH Act to affirm the Notice (with modification in relation to the date for compliance). ¶29 Section 51A(1) of the OSH Act refers to a person being issued with ‘notice of a decision under s 51(6)’, being the WorkSafe Commissioner’s decision. It is not in dispute that s 51A(5) requires the Tribunal to inquire into the circumstances relating to ‘the notice’. It would seem that ‘notice’ in s 51A(5) refers to the improvement notice or prohibition notice that is the subject of the referral. ¶30 Section 51(3) of the OSH Act says ‘A review of a decision made under section 51 shall be in the nature of a rehearing.’ The parties agree that the task for the Tribunal is as set out by the Full Bench in [31] of GHD. That is, to decide whether the Inspector was justified in forming the opinion that she did in issuing the Notice to CPC. That is the matter in question. A document will be discoverable if it relates to the Inspector’s opinion. [Category number 1] ¶31 Matters raised in materials that were considered by the WorkSafe Commissioner may be relevant to whether his decision ought to be upheld. However, considering the limited material currently before the Tribunal (see [13]), it is not apparent that the Inspector’s opinion relates to all CPC staff. Neither the Inspector’s opinion nor the WorkSafe Commissioner’s reasons for decision dated 30 April 2021 refer to workplaces other than Carlton Hill Station. At this stage, on what is before the Tribunal, documents that relate to workplaces other than Carlton Hill Station do not relate to the matter in question. ¶32 Again, based on the limited material currently before the Tribunal, it is unclear why documents about injuries generally sustained in the course of working with horses could or would demonstrate the prevalence of falls from horses or why they are necessary for the fair disposal of the case. ¶33 Considering the limited arguments currently before the Tribunal on this issue, it does not appear to me that the Inspector’s opinion is framed so as to relate to the unpredictability of horses. It does not relate to injuries generally sustained in the course of working with horses. The Inspector’s opinion is limited to serious injury or death resulting from a rider falling from a horse and receiving impact to the head at Carlton Hill Station. ¶34 At this stage, I consider that the documents sought in category number 1 are not discoverable to the extent that they go beyond serious injury or death resulting from a rider falling from a horse and receiving impact to the head at Carlton Hill Station since 1 January 2016. [Would it be just to order discovery?] ¶35 For these reasons, I consider at this stage that the documents in category number 1 (except as set out in [34]) are not necessary for the fair disposal of the case and it would not be just to order they be discovered. [Conclusion] ¶36 CPC’s objection to discovery is upheld. ¶37 The Tribunal will ask the parties to confer and write to the Tribunal’s Associate by 3pm on Wednesday 31 August 2022 proposing any orders the parties say the Tribunal should make to give effect to these reasons.