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PCBU successfully challenges prohibition notice - Byrne Demolition Pty Ltd v SafeWork NSW [2019] NSWIRComm 1008

12 February 2019
Glass enclave reception area of a corporate building
In Byrne Demolition Pty Ltd v SafeWork NSW [2019] NSWIRComm 1008 the NSW IR Commission looked at whether an Inspector held a reasonable belief as to the potential safety offence alleged in a prohibition notice.

The decision is relevant to improvement notices and it adds to a growing list of cases that demonstrate the benchmark for holding a reasonable belief is often higher than applied in practice by Inspectors. The full decision can be found here.

 

The prohibition notice alleged that workers were exposed to a serious safety risk due to there being allegedly no system in place to prevent a three (3) metre fall from a roof at the workplace. The PCBU challenged the prohibition notice, on the basis that the Inspector had not made reasonable inquires about whether there was a harness system in place to eliminate the hazard and prevent a potential fall from heights.

 

Commissioner Murphy found that the Inspector’s belief that ‘there was no system in place to prevent a person falling over three (3) metres to the ground from the roof of the building’ was wrong. The Inspector did not climb up onto the roof to more closely inspect the rope and harness arrangement that was in place. The Inspector tried to recast the basis of the notice by claiming that the breach was not the absence of system in place to prevent a fall, but rather that the harness and rope being used by a worker at the site was incorrectly used. This allegation was not contained within the notice itself or the Inspector’s notes, and the Commissioner dismissed this allegation.  Commissioner Murphy found the Inspector’s belief about a potential safety breach was unreasonable and invalidated the notice.

 

This case illustrates the following questions that PCBU's should consider if a prohibition notice or improvement notice is imminent following a site visit:

 

  • Before issuing the notice - was the Inspector aware of the features of the site WHS management plan relevant to the safety gap alleged in the proposed notice?
  • What is the actual alleged 'safety gap' to be identified/identified in the notice, and is it actually a breach?
  • Is the safety gap found by the Inspector supported by actual evidence at the time of the visit or was it just an impression?

We recommend that PCBU's have a practice of minuting regulatory visits and/or photographing places or processes examined during regulatory visits (immediately after the visit is fine).

 

The validity or otherwise of safety notices is important. There is the potential for invalid notices to affect the legacy of the PCBU, insofar as future tender questionnaires and general safety reputation is concerned. Licensed construction firms in Queensland face the further peril of related regulatory action by the Queensland Building and Construction Commission (QBCC) for notifiable safety incidents.

 

If you require further information or have any queries in relation to this alert, please feel free to contact Matthew Smith or Damian Hegarty.

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