Occupational Safety and Health Tribunal News

Application to review decision to affirm improvement notice dismissed as out of time

The Occupational Health and Safety Tribunal (Tribunal) has dismissed an application to review the WorkSafe Commissioner’s decision to affirm an improvement notice issued to a company on the basis that the application was made out of time and that it does not have the power to grant an extension.

A WorkSafe Inspector had issued an improvement notice on 20 July 2020 to a company. A request to the WorkSafe Commissioner to review the improvement notice was submitted on 21 August 2020, and on 20 October 2020, the company received notification that the WorkSafe Commissioner had affirmed the notice.

The company then sought a review of the WorkSafe Commissioner’s decision to affirm the improvement notice. It submitted to the Tribunal that it had sought information from an officer of the Department of Mines, Industry Regulation and Safety concerning the process for further review of the decision, but the information was provided outside of the timeframe specified in the Occupational Safety and Health Act 1984 (OSH Act). The company filed its referral with the Tribunal the following day.

The WorkSafe Commissioner advised the Tribunal that it would be seeking an order to dismiss the matter as the company had not referred the matter to the Tribunal within the specified time limit.

The Tribunal noted that the company’s submissions concerned the reasons for the delay. The Tribunal found, however, that it does not have the power to extend the time limit and thus did not have the discretion to consider the reasons for the delay to extend the time limit.

The Tribunal dismissed the application.

The decision can be read here.

Tribunal referral dismissed due to lack of jurisdiction

Tuesday, 26 March 2019

The Occupational Safety and Health Tribunal (the Tribunal) has dismissed an application for payment of an unspecified amount for continued pay and benefits entitlements and a loss of earnings arising from alleged discrimination against a safety and health representative in relation to employment.

The Tribunal was comprised of Commissioner Walkington who considered the entitlements claim and noted that there is a mandatory process in place for resolving health and safety issues in the workplace, which include circumstances where a worker may cease work without loss of wages and entitlements. The Tribunal further considered that it is necessary for any employee wishing to make a claim to demonstrate that they have refused to work on particular tasks, have notified the employer of their belief of the risk to their safety and health and have made themselves available for alternate duties if it is safe to do so. The Tribunal found that the applicant’s actions were not consistent with the provisions of the legislation and regulations.

The Tribunal then considered that persons who are safety and health representatives or are performing or have performed any function as a safety and health representative can make a claim for discrimination against a safety and health representative in relation to employment. The Tribunal found that the applicant was not eligible to bring this application because the applicant had not demonstrated that he was a validly elected safety and health representative.

The Tribunal dismissed the referral for lack of jurisdiction.

The decision can be read here.

Number of Safety and Health Representatives depends on circumstances of workplace

Thursday, 11 October 2018

The Occupational Safety and Health Tribunal has decided on the number of Safety and Health Representatives (SHRs) and the manner of electing such representatives for a bus depot that services primarily CAT buses.

Senior Commissioner Kenner found that there is no standard formula to determine the appropriate number of SHRs for a workplace and it will instead depend on the circumstances of that workplace. In making such a determination it is necessary to look at the number of employees, working arrangements and hazards, the need for communication between SHRs and employees, the need for SHRs to be available to communicate with the employer on health and safety issues and for the SHRs to be visible and available to respond promptly to incidents and accidents.

The Senior Commissioner noted that the 'workplace', as defined in the Occupational Health and Safety Act, in this circumstance includes the depot and the buses – even when in transit. Evidence was given on the nature of health and safety hazards faced by CAT bus drivers and the limitations to communication during a shift with other employees and the control centre. The Senior Commissioner accepted that the level of hazards in relation to CBD driving was high and that CAT bus drivers face additional hazards in the city environment.

The Senior Commissioner determined that there will be 2 SHRs for each shift, 4 in total, and that a 'first past the post' method of voting following the Electoral Commission's preferred system of voting for only one candidate. The Transport Workers Union and the respondent will jointly conduct elections for any casual vacancies.

The decision can be read here.