ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROVERA SCAFFOLDING (ACT) PTY LTD v DIRECTOR-GENERAL OF THE CHIEF MINISTER, TREASURY & ECONOMIC DEVELOPMENT DIRECTORATE (Administrative Review) [2016] ACAT 127

AT 110/2014

Catchwords: ADMINISTRATIVE REVIEW – scaffolding – whether construction of scaffolding must comply with the manufacturers manual – whether construction of scaffolding must comply with the relevant Australian Standards – whether the scaffolding represented a risk to health and safety – what review process is available under section 191 of the Work Health and Safety Act 2011

Legislation cited: Legislation Act 2001 s 16Work Health and Safety Act 2011 ss 3, 18, 19, 26, 156, 160, 191, 223, 229

SubordinateLegislation cited: Work Health and Safety Regulation 2011 rr 201, 202, 225

List of Texts/Papers cited: Australian Standards AS 1576, AS 4576

Tribunal: Senior Member A Anforth (Presiding)Senior Member R Pegrum

Date of Orders: 23 November 2016Date of Reasons for Decision: 23 November 2016

AUSTRALIAN CAPITAL TERRITORYCIVIL & ADMINISTRATIVE TRIBUNAL AT 110/2014

BETWEEN:

ROVERA SCAFFOLDING (ACT) PTY LTDApplicant

AND:

DIRECTOR-GENERAL OF THE CHIEF MINISTER, TREASURY & ECONOMIC DEVELOPMENT DIRECTORATE

Respondent

TRIBUNAL: Senior Member A Anforth (Presiding)Senior Member R Pegrum

DATE: 23 November 2016

ORDER

The Tribunal orders that:

1. The decision of the respondent is set aside and a decision is substituted that a notice under section 191(2) of the WHS Act not be issued.

………………………………..Senior Member A Anforth

delivered for and on behalf of the Tribunal

REASONS FOR DECISION

Preamble

1. The applicant sought internal review of a decision by Mr Mason (Worksafe

Inspector) employed by the respondent dated 4 November 2014 to issue an

improvement notice under section 191 of the Work Health and Safety Act 2011

(the WHS Act). The notice related to scaffolding at a building site at Gungahlin

(the site) at which Lend Lease was constructing a new commercial complex.

Lend Lease contracted the applicant Rovera Scaffolding (ACT) Pty Ltd

(Rovera) to erect the scaffolding for the building work.

2. Mr Mason’s decision was affirmed by Mr McCabe, then a senior director at

WorkSafe ACT, on internal review on 5 December 2014. Section 229 of the

WHS Act provides that an eligible person may apply to the ACAT for a review.

The applicant is an eligible person according to Item 9 of the WHS Act. The

applicant exercised that right and applied to the tribunal for review.

3. After careful consideration, the two members who formed the Tribunal for the

application reached different conclusions about the orders that should be made.

Section 52 of the ACT Civil and Administrative Tribunal Act 2008  provides that

where a Tribunal is constituted by more than one member and they cannot reach

a majority decision on the question, the decision of the presiding member is the

decision of the Tribunal. Senior Member Anforth was the presiding member and

his decision therefore prevails. The reasons of both members are set out below.

REASONS FOR DECISION OF SENIOR MEMBER ANFORTH

Chronology of events

4. On 4 November 2014 Mr Mason, a WorkSafe inspector, made certain

observations of the applicant’s scaffolding on the site. The construction on the

site was well under way and was some four storeys high. Mr Mason observed

what he considered to be defects in the scaffolding. The defects included the

failure of the diagonal bracing to extend to the top lift of the scaffolding and a

gap of about 0.5 metres between the upper points of attachment of some

diagonal support struts and the lower attachment of the next diagonal support

struts.

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5. Some form of verbal altercation occurred on site between Mr Mason and

Mr Perrott, the Lend Lease site construction manager, concerning the adequacy

of the scaffolding. Mr Mason returned to his office and later that day issued the

improvement notice requiring rectification of the scaffolding and a statement of

compliance following a further inspection by a competent person.

6. The work place visit note number 1873-7778 prepared by Mr Mason on the

same day and directed to Rovera made the following observations and

directions:

1. Observed face bracing (longitudinal bracing) on scaffold not

continuous to top working level

Actions

2. Improvement Notice 1873-7776 to be issued to Rovera Scaffolding

(person with management of scaffolding) for scaffold on site not erected

in accordance with manufacturer’s instructions (reg 225(4))

3. Rovera to provide WorkSafe with a copy of handover certificate for the

scaffolding on site once necessary repairs, alterations and additions are

carried out and the scaffold and its supporting structures have been

inspected by a competent person.1

7. The improvement notice 1873-7776 prepared by Mr Mason on the same day and

directed to Rovera commences in general terms and then nominates the

provision said to be contravened as regulation 225(4) of the Work Health and

Safety Regulation 2011 (the Regulation). The notice contained the following

explanatory material:

An inspection undertaken of the scaffolding erected at Block 43 Section 226 Gungahlin on 4/11/2014 indicated that the scaffold or its supporting structure creates a risk to health and safety of persons on the site due to not being erected in accordance with manufacturer’s instructions.2

8. The notice directed Rovera to:

Have a competent person inspect the scaffolding erected at the construction project and carry out any necessary repairs, alterations and additions and provide the principle contractor of the site and WorkSafe

1 T documents page 342 T documents page 20

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with written confirmation from a competent person, who has inspected the scaffold, that the construction of the scaffold has been completed in accordance with the manufacturer’s erection instructions and the appropriate Australian Standards.

9. The notice also stated that the contravention was to be remedied by close of

business 6 November 2014.

10. Lend Lease and Rovera attended to the rectification of the scaffolding within

two days to the satisfaction of WorkSafe. An additional 34 structural members

were added to the scaffold and there was no issue concerning the rectification

work. There was no monetary or other penalty imposed on Rovera. Mr Mark

Savage, manager of Rovera, told the Tribunal that the fact the rectification work

done did not amount to any admission or agreement that the scaffolding work

was defective in the first instance. The work was undertaken because “our

reputation is very important to us…if we didn’t remedy that, the bracing and so

forth, there was a real chance that the site could be stopped. That would in turn

damage our reputation relationship with the principal contractor.”3

11. The improvement notice was the subject of an internal review which affirmed

the issue of the notice. The delegate, Mr McCabe, provided reasons dated

5 December 2015. Leaving aside formal matters, Mr McCabe directed his

attention to whether there had been a contravention as provided for by section

191(1)(a) or (b) of the WHS Act and the alleged breach of regulation 225(4). He

noted (in summary):

(a) regulation 225(4) is premised on the existence of ‘a risk to health and

safety’ arising from the scaffolding;

(b) the engineering report of Mr Stodulka dated 19 March 2014 to the effect

that the scaffolding was structurally sufficient and complied with the

relevant Australian Standards;

(c) the contention that there was no requirement at law to strictly follow the

manufacturer’s instructions on the erection of scaffolding;

(d) the contention that Mr Mason directed his attention to only one method of

compliance with AS 4576 and AS 1576, namely by observing the

manufacturer’s instructions, and that he ignored the alternative method of 3 Transcript of Proceedings 29 June 2015 page 95, line 20

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design by a competent person under the Australian Standards.4

12. Mr McCabe noted that regulation 202(2) does not require strict compliance with

the manufacturer’s guidelines but requires the applicant to ‘have regard to’

them. He noted that Australian Standard 4576 at 10.3.4 permits scaffold design

by a competent person “where it is not practicable to follow the supplier’s

information for the design of a scaffold.” In the present case there had been no

assertion of any relevant impracticality.

13. Mr McCabe noted:

(a) the failure of the diagonal bracing to extend to the top lift. He noted that

AS 4576 at part 8.6 requires extension to the top lift “unless erection and

dismantling procedures are designed by a competent person and provided

to the scaffolders erecting the scaffolding to ensure the scaffolding is

erected within the design limits of the system.” Mr Mason said that the

applicant was unable to point to any such alternative procedures;

(b) the existence of Unimesh Reinforced Polymer around some of scaffolding

which would increase the wind load and hence put the scaffolding under

additional strain; and

(c) the date of Mr Stodulka’s report, being some seven months before the site

visit of Mr Mason. At that time it was unlikely that much of the

scaffolding had actually been erected.

14. Mr McCabe concluded that no competent person had signed off on the

scaffolding as built or had verified the design. He was of the view that the

scaffolding as built ‘creates a risk to health and safety’.

15. Rovera then sought review by the ACT Civil and Administrative Tribunal. The

Tribunal was told that the motivation for the appeal lay in the potential for the

improvement notice to prejudice future contracts for which Rovera might

tender. Mr Walker SC told the Tribunal “in tendering for jobs you are regularly

asked whether you have had any work health and safety improvement notices

issued to you”. In any event Rovera had a right of appeal and its motivation for

4 T documents pages 59-64

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doing so is irrelevant.5

16. There followed a series of direction hearings in which a timetable was made and

subsequently varied for the filing of statements of facts and contentions,

statements of witnesses and other material relied upon.

17. The evidence of the witnesses before the Tribunal was often characterised by

evasiveness. There appeared to be a degree of tension between the respondent’s

officers and the witnesses of Rovera and Lend Lease. On various occasions the

Tribunal found it necessary to put a proposition to a witness which appeared to

be the underlying substance of their evidence. On those occasions the Tribunal

informed the witness that, unless an unequivocal rebuttal or explanation was

given, the Tribunal would take their evidence to be the proposition put by the

Tribunal. The evidence of Mr Bodsworth and Mr Stodulka was particularly

evasive evoking comment from the Tribunal at the time.6

18. The core of the appeal lay in a proper construction of several provisions of the

the WHS Act including sections 191(1) and (2); regulations 202 and 225(4) in

the Regulation and the role of the Australian Standards AS 4576 and AS 4176

for the purpose of section 191 and regulation 225(4).

19. Section 191 of the WHS Act required that Mr Mason identify a contravention of

the WHS Act or of the Regulation. Mr Mason asserted a breach of regulation

225(4), which he contended came into effect “if an inspection indicates that a

scaffold at a workplace or its supporting structure creates a risk to health and

safety”. It was open to Mr Mason to have based the improvement notice on any

contravention of the Act or Regulation. Mr Mason’s reliance upon regulation

225(4) was his choice and required for its validity a reasonable belief that there

was a risk to health and safety.

20. Regulation 225(4) applies where an ‘inspection’ ‘indicates’ that there is a risk to

health and safety. At that point the site manager ‘must ensure’ that any

necessary repairs, alterations or additions are carried out. The ‘inspection’ is a

5 Transcript of Proceedings 29 June 2015 page 2, line 256 Transcript of Proceedings 30 June 2015 page 147, line 30; page 177,

line 17; page 186 line 10

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reference to the inspection by the ‘competent person’ referred to in regulation

225(3). A ‘competent person’ is defined in the Dictionary to the Regulation as

“a person who has acquired through training, qualification or experience the

knowledge and skills to carry out the task.” Mr Mason gave evidence of his

training and qualifications that qualified him as a ‘competent person’. The

respondent put its case on the premise that Mr Mason was a competent person

capable of giving an ‘indication’ under this regulation, albeit that he in fact

chose to issue a notice under section 191.

21. Regulation 225(4) permits a competent person, in this case Mr Mason, to

‘indicate’ to Rovera that repairs or rectifications are required and that there be

subsequent inspections of the rectified work. It is an offence for Rovera to fail

to comply with that ‘indication’ under this regulation. The indication of a

scaffolding defect that creates a risk to public health and safety is a

jurisdictional fact that must be shown to exist before the operation of the

remainder of regulation 225(4) can operate. The existence of that jurisdictional

fact is not itself a breach of regulation 225(4) or of the regulations. It is the

trigger by which the power to require or order rectifications in regulation 225(4)

come into operation. A breach of regulation 225(4) only arises where there is

non compliance with an indication or order to carry out the rectification or

repairs.

22. A degree of semantics arose concerning the construction of regulation 225(4). It

was pointed out that the regulation does not explicitly provide for a ‘notice’ or

an ‘order’ to be given by the competent person to Rovera. It is true that the

regulations uses the term ‘indication’. This is an ordinary English word and

connotes the act of bringing something to someone attention. Rovera is not

expected to determine any concerns by a competent person following their

inspection by some psychic processes. It is trite that no indication is given until

it is conveyed to Rovera and Rovera cannot commit an offence under the WHS

Act by failing to ensure that necessary repairs, alterations etc are carried out

until it is told what has to be done. It may be that the ‘indication’ could be given

orally or in writing, but it still has to be given and when it is given it puts

Rovera on notice of what has to be done. A written notice from a competent

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person, in this case Mr Mason, can also be an ‘indication’ within the meaning of

regulation 225(4).

23. The other semantic issue that arose over the construction of regulation 225(4)

concerned the use of the term ‘order’. Regulation 225(4) provides that upon

receipt of the indication Rovera ‘must ensure’ that it carries out the necessary

repairs, alterations etc, in default of which a criminal offence is committed. For

a person to be told that they ‘must’ do certain things in default of which they

will be guilty of a crime, is close enough to the ordinary English meaning of the

noun ‘an order’.

24. These statutory issues and the choice made by Mr Mason caused the Tribunal

considerable difficulty. The submissions of the parties on issues of statutory

interpretation and administrative law were, for the most part, contradictory and

strongly argued.

25. The legislation requires that for an improvement notice to be issued under

section 191 there must be a reasonable belief that there is a breach of a

provision in the Act or Regulation. In so far as the Act and the Regulation do

not make compliance with either a relevant Australian Standard or the

manufacturer’s directions mandatory, section 191 is not, and cannot be, satisfied

merely by non-compliance with a relevant Australian Standard or

manufacturer’s direction. Nor is section 191 satisfied merely by a reasonable

belief in the existence of a risk to health and safety if that risk does not also

constitute a breach of a specific provision in the Act or Regulation.

26. Regulation 225(4) relates explicitly to scaffolding and it contains its own power

to require rectification where there is seen by a competent person to be a risk to

health and safety in the erection of the scaffolding. It does not rely upon any

power or operation of section 191. It does not require that there be any breach of

a provision of the Act or Regulation or of any breach of the relevant Australian

Standard or manufacturer’s direction. In this sense regulation 225(4) is a

distinctly different provision to section 191.

27. In the present context there would seem to have been two courses of action open

to Mr Mason under the WH&S Act:

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(a) issue an indication or notice under regulation 225(4) AND at the same

time issue a separate improvement notice under section 191, for the same

rectification work assuming that the separate requirements of each of the

these provisions is satisfied (which is not so on the facts of this case); or

(b) make a choice between issuing an indication or notice under regulation

225(4) OR an improvement notice under section 191 for the rectification,

but not both. In the present case the improvement notice under section 191

citing a breach of regulation 225(4) would need to:

(i) rely upon the same defects that were available to Mr Mason under

regulation 225(4) notwithstanding that there has been no indication

or notice under regulation 225(4) and hence no failure to comply

with that indication or notice; and

(ii) show the defect relied upon in the improvement notice is in fact one

that could have been the subject of a notice under section 225(4)

that is, one that goes to health and safety and not just a breach of the

Act or regulations per se; and

(iii) was at the same time also a breach of the Act or Regulations.

28. Mr Mason appears to have adopted the second course of action. The applicant

asserts that this choice was not open to Mr Mason because:

(a) there was no breach of any provision of the Act or regulations identified

by Mr Mason, which is essential for a valid section 191 notice. Mr Mason

only identified an indication or order under regulation 225(4);

(b) in so far as Mr Mason nominated the relevant breach as being that of

regulation 225(4), he was simply wrong. There had been no separate or

prior indication or notice under that regulation and hence no failure to

comply with any such direction; ergo no breach of regulation 225(4);

(c) even if the section 191 notice is taken to also be a simultaneous notice or

indication under regulation 225(4), Rovera did not fail to comply with that

notice and so did not commit any breach of the Act or Regulations;

(d) the issues identified for the purposes of regulation 225(4) did not entail

any breach of any provision of the Act or regulations, it only involved a

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perceived risk to health and safety. Thus there is no breach of any

provision of the Act or regulations as required by section 191; and

(e) section 191 and regulation 225(4) are separate statutory regimes that may

be alternatives in individual cases if the criteria for their mutual operation

existed, but should not be conflated in the manner that Mr Mason has

done.

Relevant Legislation

Work Health and Safety Act 2011 Work Health and Safety Regulation 2011

29. The object of the WHS Act is given at section 3:

3 Object(1) The main object of this Act is to provide for a balanced and nationally

consistent framework to secure the health and safety of workers and workplaces by—(a) protecting workers and other persons against harm to their health,

safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant; and

(b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

(c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment; and

(d) promoting the provision of advice, information, education and training in relation to work health and safety; and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the ACT.

30. Section 18 of the Work Health and Safety Act 2011 defines ‘reasonably

practicable’:

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18 What is reasonably practicable in ensuring health and safety

In this Act:reasonably practicable, in relation to a duty to ensure health and safety, means

that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about—

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk—the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

31. Section 19(1) of the Work Health and Safety Act 2011 provides:

19 Primary duty of care(1) A person conducting a business or undertaking must ensure, so far as is

reasonably practicable, the health and safety of—(a) workers engaged, or caused to be engaged, by the person; and(b) workers whose activities in carrying out work are influenced or

directed by the person,

while the workers are at work in the business or undertaking.

32. Section 26(1) of the Work Health and Safety Act 2011 provides:

26 Duty of persons conducting businesses or undertakings that install, construct or commission plant or structures

(1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant or a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2) The person must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned ensures that the plant or structure is without risks to the health and safety of persons—

(a) who install or construct the plant or structure at a workplace; or

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(b) who use the plant or structure at a workplace for a purpose for which it was installed, constructed or commissioned; or

(c) who carry out any reasonably foreseeable activity at a workplace in relation to the proper use, decommissioning or dismantling of the plant or demolition or disposal of the structure; or

(d) who are at or in the vicinity of a workplace and whose health or safety may be affected by a use or activity referred to in paragraph (a), (b) or (c).

33. Section 191 of the Work Health and Safety Act 2011 provides:

191 Issue of improvement notices(1) This section applies if an inspector reasonably believes that a person—

(a) is contravening a provision of this Act; or(b) has contravened a provision in circumstances that make it likely that

the contravention will continue or be repeated.(2) The inspector may issue an improvement notice requiring the person to—

(a) remedy the contravention; or(b) prevent a likely contravention from occurring; or(c) remedy the things or operations causing the contravention or likely

contravention.

34. Regulations 201 and 202 of the Work Health and Safety Regulation 2011

provide:

201 Duties of persons conducting businesses or undertakings that install, construct or commission plant

(1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace.

(2) The person must ensure that the plant is installed, constructed or commissioned having regard to—(a) the information provided by the designer, manufacturer, importer or

supplier of the plant under the Act and this regulation; or(b) the instructions provided by a competent person to the extent that

those instructions relate to health and safety.

202 Duties of persons conducting businesses or undertakings that install, construct or commission structures

(1) This section applies to a person who conducts a business or undertaking that installs, constructs or commissions a structure that is to be used, or could reasonably be expected to be used, as or at, a workplace.

(2) The person must ensure that the structure is installed, constructed or commissioned having regard to—

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(a) the information provided by the designer, manufacturer, importer or supplier of the structure under the Act and this regulation; or

(b) the instructions provided by a competent person to the extent that those instructions relate to health and safety.

35. Regulation 225(3) and (4) in the Work Health and Safety Regulation 2011

provides:

225 Scaffolds...

(3) The person with management or control of a scaffold at a workplace must ensure that the scaffold and its supporting structure are inspected by a competent person—

(a) before use of the scaffold is resumed after an incident occurs that may reasonably be expected to affect the stability of the scaffold; and

(b) before use of the scaffold is resumed after repairs; and

(c) at least every 30 days.

Maximum penalty:(a) in the case of an individual—$6 000; or(b) in the case of a body corporate—$30 000.

(4) If an inspection indicates that a scaffold at a workplace or its supporting structure creates a risk to health or safety, the person with management or control of the scaffold must ensure that—

(a) any necessary repairs, alterations and additions are made or carried out; and

(b) the scaffold and its supporting structure are inspected again by a competent person before use of the scaffold is resumed.

Maximum penalty:(a) in the case of an individual—$6 000; or(b) in the case of a body corporate—$30 000...

The Australian Standards

36. Australian Standard 4576:1995 relevantly provides:

8.1: Introduction:

Section 8 provides general advice for the safe construction of the basic types of

scaffolding.

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8.2 General

The construction of a scaffold must comply with the relevant Australian or New

Zealand occupational health and safety requirements.

Those responsible for the erection, alteration and dismantling of scaffolds [in

this case Rovera] should ensure that an erected scaffold complies with the

relevant requirements of AS/NZS 1576.1, AS 1576.2, AS/NZS 1576.3, AS 1576.4

and AS/NZS 1576.5. The ways to achieve this are:

Build the scaffold to the supplier’s information about the system.

Build the scaffold in accordance with AS 1576.3 Supplement 1.

Build the scaffold to a design that has been verified by a competent

person as complying with the relevant requirements of AS/NZS 1576.1,

AS 1576.2, AS/NZS 1576.3, AS 1576.4 and AS/NZS 1576.5.

The design specifications of a scaffold can be either a complex set of drawings

or held in the mind of the responsible scaffolder. It is the verification that the

design complies with the relevant requirements of AS/NZS 1576.1, AS 1576.2,

AS/NZS 1576.3, AS 1576.4 and AS/NZS 1576.5 that is important, not the form

the design takes…

8.6 RIGIDITY

Rigidity is achieved through the use of fabricated frame units, fixed mesh panels

or diagonal

bracing systems. Where diagonal bracing systems are used, they should extend

from the base of the scaffold to the top lift. Bracing does not have to extend to

the height of the top guardrail. Typical transverse bracing is illustrated in

Figure 8.6.

8.10 CONTAINMENT SHEETING

Containment sheeting is used for both safety and environmental purposes.

Where work is carried out close to pedestrian or vehicular access, scaffolds that

are sheeted down to hoarding level can minimize both the risk to the public and

the area lost to public access...

Scaffolds fitted with containment sheeting have increased dead loads and are

exposed to increased wind and rain loads. The design of such scaffolds and ties

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must be approved by a competent person, such as an engineer experienced in

structural design.

10.3 Prefabricated Scaffolds

10.3.3 Supplier’s information Suppliers must provide the following

information:

• Instructions for erection, dismantling, transportation, storage and

maintenance.

• Guidance on the type of scaffolding coupler to use when connecting ties and

other accessories.

• The intended duty of the scaffold, including its maximum platform capacity.

...

10.3.4 Design Where it is not practicable to follow the supplier’s information

for the design of a scaffold, the design should be verified for compliance with

AS/NZS 1576.1 by a competent person, such as an engineer experienced in

structural design.

Applicant’s facts and contentions

37. On 25 March 2015 the applicant filed a statement of facts and contentions. The

statement recited the historical facts and contended that:

(a) as a matter of law, the scaffolding was not required to conform with the

Acrow instructions;

(b) compliance with the Australian Standards was not mandatory but the

scaffolding did comply with the Standards;

(c) the scaffolding did not represent any risk to the health and safety of

persons (regulation 225(4)) and so the jurisdictional basis for the

application of regulation 225(4) did not exist;

(d) there was no other relevant contravention of the Act or Regulation that

could provide a jurisdictional basis for the issue of the notice under

section 191.

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Respondent’s facts and contentions

38. The respondent’s statement of facts and contentions was brief. It asserted:

(a) the use of the Acrow system on site;

(b) the scaffolding was not erected in conformity with the Acrow manual;

(c) the diagonal bracing did not continue to the top working level; and

(d) the aggravating wind load effects of the polymer containment sheeting

around the scaffolding.

The statement contended that the scaffolding was a risk to health and safety

(regulation 225(4)) and that Mr Mason had a reasonable belief for that finding

that is, Mr Mason was a competent person for the purposes of regulation 225(4).

39. On 22 May 2014 the respondent filed an expert report from Mr El-Ansary

consulting structural engineer dated 14 May 2015. The report of Mr El-Ansary

took issue with the reports of Mr Stodulka and Mr Bodsworth and opined that:

(a) the diagonal bracing did not extend to the top lift and there were 0.5m

gaps between the points of affixation on the vertical beams;

(b) the scaffolding construction did not conform with the Australian

Standards and there was no engineering certification justifying an

alternative design;

(c) the design was structurally unsound and not capable of withstanding the

loads the manufacturer anticipated; and

(d) the use of the reinforced polymer sheeting added to wind load and to the

risk of failure.

40. On the morning of the second day Mr McCarthy advised the Tribunal that he

did not intend to call Mr El-Ansary for the reason that he did not believe that

Mr El-Ansary’s evidence was relevant.

41. On 25 June 2015 the respondent filed an ‘Index to Documents’ which included:

(a) a statement of reasons for the issue of the improvement notice prepared by

Mr Coleman, solicitor for WorkSafe, dated 18 February 2015. This

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statement does not list any additional grounds to the reasons provided by

Mr McCabe above;

(b) the request for internal review by the applicant and associated documents;

(c) the improvement notice;

(d) workplace visit records of 4 November by Mr Mason;

(e) the scaffolding handover certificate dated 6 November 2014 under the

hand of Mr Olsson and Mr Perrott;

(f) various photographs;

(g) the reasons given by Mr McCabe upon internal review dated

5 December 2014;

(h) the manual for the Acrow Cuplok Scaffolding System;

(i) extracts from the Australian Standards; and

(j) a range of other documents that were thought to be relevant.

The hearing

42. The matter was heard by the Tribunal on 29 and 30 June 2015 and on

17 September 2015. A further hearing was held on 29 April 2016 to consider the

responses of the parties to a number of questions from the Tribunal after the

conclusion of the hearing on 30 June. The Tribunal had before it the documents

provided by the respondent relevant to the decision under review (the T

Documents) together with statements of facts and contentions submitted by the

parties and witness statements and other documents tendered in evidence during

the hearing.

43. The applicant was represented at the hearings by Mr P Walker SC. The

respondent was represented at the hearings in June and September 2015 by

Mr G McCarthy. The respondent was represented at the hearing in April 2016

by Mr R Clynes.

44. The respondent called evidence from Mr Greg Mason. The applicant called

evidence from Mr Mark Savage, Mr James Bodsworth and Mr Andrea Stodulka.

45. The various documents that had been filed and served by the parties were for

convenience accorded exhibit numbers on the basis that the marking of the

documents as such did not connote that any part of them was beyond challenge

17

at the appropriate time.

46. By way of opening for the respondent, Mr McCarthy said:

The respondent’s case is quite simple. Mr Mason went to the site. He saw non-complying scaffolding in various ways. He maintains that it was non-compliant for two reasons: (1) it didn’t comply with the manufacturer’s instructions, and [2] it didn’t comply with the [AS 4576]…hence an improvement notice was issued. 7

So in very simple terms you have a situation where the scaffolding departed from compliance with the Australian Standards, departed from the manual, an improvement notice was issued.8

47. Later Mr McCarthy qualified the above to the effect that compliance with the

manual was not mandatory if it was not practicable to comply with it.9

Compliance with the Australian Standards was not mandatory if an alternative

approved engineering solution was developed; but no such alternative solution

had been developed or approved in this case.10 Mr McCarthy later more fully

developed these submissions.

48. Mr McCarthy submitted that the only merits review relevant to section 191(2)

was whether Mr Mason’s decision to issue the notice was justified on the facts

of the case before him.11 When pressed with the scenario that Mr Mason may

not have sought other relevant information that was available at the time of the

issue of the notice, Mr McCarthy responded only that such were not the facts of

this case.12

49. By way of opening for the applicant, Mr Walker SC conceded that the erection

of the scaffolding did not comply with the Acrow manual in the manner alleged

by the respondent. He did not concede non-compliance with the Australian

Standards and he took issue with any requirement at law that Rovera comply

with the Acrow manual or the Australian Standards.13 He conceded that no

alternative engineering solution had been approved but contended that

7 Transcript of Proceedings 29 June 2015 page 11 lines 35-408 Transcript of Proceedings 29 June 2015 page 14, line 259 Transcript of Proceedings 29 June 2015 page 15, line 4010 Transcript of Proceedings 29 June 2015 page 15, line 511 Transcript of Proceedings 30 June 2015 page 108 lines 25-4012 Transcript of Proceedings 30 June 2015 page 109, line 1513 Transcript of Proceedings 29 June 2015 page 15, lines 5-15

18

Mr Stodulka had ‘agreed’ that the alternative method adopted was safe.14

50. Mr Walker SC challenged Mr McCarthy to point to the statutory provision that

made compliance with the Australian Standards or manufacturer’s manual

mandatory as opposed to being only a relevant consideration.15 Mr McCarthy

responded by stressing the practical role of the Australian Standards in

construction. When pressed by the Tribunal to nominate the statutory basis for

the Australian Standards being mandatory, Mr McCarthy was unable to do so.

The Tribunal then advised that it would proceed on the basis that the Australian

Standards were industry practice but not mandated at law.16

51. Mr Walker SC contended that the reasonableness of Mr Mason’s belief for the

purposes of section 191(1) was to be judged by reference to the information

before Mr Mason as well as the information that Mr Mason could have been

aware of had he made reasonable inquiries on the adequacy of the scaffolding.17

52. By the time of the hearing the building had been completed and the scaffolding

had been removed. The form of the scaffolding at the time and the alleged

defects were the subject of many photographs exhibited in the Tribunal. It was

difficult to translate these photographs and discussions into words for the

purpose of this decision. The reader will need to accept some degree of

generality in the descriptions provided above and below.

53. A further difficulty in the matter arose from substantial omissions and errors in

the transcripts of the proceedings. The parties levied strong criticisms of the

inefficiency of the transcript preparations with which the Tribunal agrees.18

The Evidence

The evidence of Greg Mason

54. Mr Mason was a Worksafe inspector appointed under section 156 of the WHS

14 Transcript of Proceedings 29 June 2015 page 16, line 30; page 24, line 40; 26, lines 5-20

15 Transcript of Proceedings 29 June 2015 page 20, line 40; page 25, lines 35-45

16 Transcript of Proceedings 29 June 2015 page 22, line 20; page 25, line 25

17 Transcript of Proceedings 30 June 2015 page 106, line 35; page 107, line 5

18 Transcript of Proceedings 17 September 2015 page 3, line 25

19

Act. On 22 May 2015 the respondent filed a witness statement from Mr Mason

dated 10 April 2015.19

55. Mr Mason adopted his statement, which was the subject of considerable deletion

of inadmissible material. The net document said:

(a) Mr Mason observed Acrow Cuplok scaffolding at the site which he

described in the statement;

(b) he observed the reinforced polymer containment sheeting “which causes

the scaffolding to have increased dead loads and be exposed to increased

wind and rain loads”;

(c) he observed the bracing, including the diagonal bracing which did not

extend to the top working level and which he said was inconsistent with

the Acrow manual and the Australian Standards;

(d) he observed the 0.5 metre gaps in the affixation points on the vertical

standards; and

(e) he described a conversation with Mr Perrott who told him that the bracing

complied with the Australian Standards.

56. Mr Mason gave oral evidence and appeared to be a witness of credit. He stated

that he was an electrician by trade. He told the Tribunal he had no formal

qualifications in scaffolding but had undertaken training in scaffolding and

yearly training at CIT in Canberra.20 Mr Mason gave evidence that he had “over

40 odd years working in and around construction sites, and as an inspector for

the last 7 years with WorkSafe attending sites where scaffolding has blown over

in wind events, yes, I consider myself competent to make that judgment based

on if it complied with guidelines”.21 The Tribunal had no reason to doubt the

competence of Mr Mason.

57. Mr Mason affirmed in cross-examination that his opinion on the health and

safety issues arose as a consequence of the failure to comply with the

manufacturer’s manual and the Australian Standards.22

19 Exhibit R120 Transcript of Proceedings 29 June 2015 page 57, line 521 Transcript of Proceedings 29 June 2015 page 57, line 1422 T documents pages 54, 55, 57

20

58. Mr Mason was particularly concerned by the presence of the polymer cladding,

saying “once cladding goes on it puts a different picture on the layout of the

scaffolding with safety features…I formed the belief on the Notice because the

building was clad”. Mr Mason told the Tribunal that if there had been no

cladding he would not have issued the improvement notice: “I would have just

asked for it to get fixed but there was urgency because the total number of

braces that I saw was short and I believed we needed to take action.”23

59. In cross examination, Mr Mason conceded that the Rovera Cuplok scaffolding

system is not manufactured by Acrow but he agreed with the statement of

Mr Walker that “for its construction it uses the same kind of technique, being a

Cuplok, for its assembly.”24 Asked by Mr McCarthy “with respect to the manner

in which the scaffold ought to be assembled, does it make any difference as to

who manufactured it”, Mr Mason replied “no”.25

The evidence of Mark Savage

60. Mr Savage was the manager of Rovera, the applicant in this matter. The witness

statement of Mr Savage was admitted as Exhibit A3. In his statement, Mr

Savage said “the scaffolding system used on the Gungahlin site was a Rovera

system modular Cuplok scaffold which was supplied and erected by Rovera”.

Mr Savage stated that the Rovera system was based on a “common use scaffold

system” and that “one obvious difference between the Acrow System and the

Rovera system is that the Acrow system is galvanised whilst the Rovera system

is painted”. Mr Savage stated that the Rovera system had been independently

tested in New South Wales.26

61. Mr Savage annexed to his statement the scaffolding plans for the site together

with “certificates of competency for the people who signed off on the

scaffolding handover.” Mr Savage gave evidence that each of these people had

been employed by Rovera for a number of years.

62. In his statement, Mr Savage gave his recollection of a conversation he had with

23 Transcript of Proceedings 29 June 2015 page 79, line 42; page 80, line 10

24 Transcript of Proceedings 29 June 2015 page 58, line 425 Transcript of Proceedings 29 June 2015 page 84, line 3826 Statement of Mark Savage at [50]-[54]

21

Mr Mason on site about a week after the issue of the improvement notice,

during which Mr Mason said “the scaffold was in danger of imminent collapse”

to which Mr Savage replied “scaffolds do not collapse on our watch big fella.”

At that point, Mr Mason told him that the conversation had become personal

and the meeting should be adjourned. Mr Savage said Mr Mason had taken

“personal offence at a remark where none was intended.”27

The evidence of James Bodsworth

63. Mr Bodsworth was Regional Environmental Health and Safety Manager for

Lend Lease. He told the Tribunal that he was not representing Lend Lease at

this hearing.28

64. On 31 March 2015 the applicant filed a witness statement from Mr Bodsworth.29

65. The statement from Mr Bodsworth:

(a) recounted his experience in scaffolding and construction over 30 years;

(b) stated that he visited the site once per fortnight during construction during

which time he observed the scaffolding being erected;

(c) Lend Lease required that the scaffolding was inspected every two weeks

by a licensed scaffolder; these inspections took place and a scaffolding tag

was placed in situ upon each inspection;

(d) the scaffolding was erected by licensed and competent scaffolders to the

plans provided by Rovera that Mr Stodulka had approved;

(e) the scaffolding was inspected and approved by Mr Stodulka in March

2014;

(f) scaffolding handover certificates were provided by the people erecting the

scaffolding;

(g) opined that the scaffolding complied with relevant Australian Standards

and represented no health and safety risk;

(h) expressed the view that there was no strict requirement to comply with

manufacturer’s guidelines but in any event the scaffolding did so comply;

(i) the requirement for the diagonal bracing to extend to the top working level 27 Exhibit A3 and T documents pages 94-95; Statement of Mark Savage

at [18]-[20]28 Transcript of Proceedings 30 June 2015 page 149, line 129 Exhibit A2

22

only required that it be affixed to the nearest fixing point to the underside

of the working level platform;

(j) the point for fixing diagonal face bracing is predetermined by the design

of the standards which have lugs welded at regular intervals;

(k) installation of the diagonal face braces conformed to both the

manufacturer’s specifications and the Australian Standards;

(l) the scaffolding was fixed by bolts to the building and lateral displacement

could not have taken place; and

(m) he inspected the works to ensure compliance with “relevant WHS

requirements and Lend Lease EHS policies and procedures.”

66. Mr Bodsworth adopted his statement and gave further oral evidence. The thrust

of Mr Bodsworth’s evidence was that the scaffolding was in truth over-

engineered by the presence of various safety features not required in the Acrow

manual or the Australian Standards. Mr Bodsworth stated that these features

included the bolting of the scaffolding vertical beams to the building masonry

structure30 and additional ledgers and beams.31 In his opinion, the presence of

these additional features, particularly the bolting of the scaffolding to the

building structure, more than compensated for the absence of diagonal bracing

to the top lift and any issue about the 0.5 metre gap in affixation points. 32 He

described this way of assessing the scaffolding as an ‘holistic approach’.33

67. Notwithstanding Mr Bodsworth’s tendency to be evasive in some of his

answers, he did appear to the Tribunal to be a man of considerable experience in

the industry who had a relatively simply story to tell, namely that the structure

was over-engineered and therefore was safe.

68. Mr Bodsworth gave evidence that “the scaffold was in good fettle and there is

no risk to health and safety.”34 In his opinion, the gap of approximately half a

metre between the braces “does not pose a risk to the scaffolding nor to health

30 Transcript of Proceedings 30 June 2015 page 121, line 531 Transcript of Proceedings 30 June 2015 page 136, line 4032 Transcript of Proceedings 30 June 2015 page 118, line 40; page 136,

line 3033 Transcript of Proceedings 30 June 2015 page 119, line 35; page 126,

line 10; page 143, line 1034 Transcript of Proceedings 30 June 2015 page 119, line 43

23

and safety.”35 The primary function of the diagonal bracing is “to keep the

scaffold squared up and reduce sideways movement”.36

69. Mr Bodsworth opined that there was no health and safety risk in the manner that

the scaffolding had been erected.37 Mr McCarthy cross examined Mr Bodsworth

on the issue of whether he could ‘guarantee’ the safety of the structure in the

absence of the two issues of non-compliance noted by Mr Mason and the

presence of the polymer mesh. The Tribunal observed that risks to health and

safety are a matter of degree and that the legislation does not contain any

absolutes in the nature of a ‘guarantee’. In any event, even the safety of a

structure strictly complying with the Australian Standards could not be

‘guaranteed’. The thrust of Mr Bodsworth’s response was that the over-

engineering on site provided a greater degree of safety than would a structure

that complied only with the Acrow manual and the Australian Standards.

70. Mr Bodsworth said that the role of the polymer mesh had been misunderstood

by other witnesses. He said that the mesh is fixed to the scaffolding in a manner

to release at certain wind speeds and so represented no danger in high winds.38

71. Mr Bodsworth reluctantly conceded that the scaffolding as built did not fully

comply with the diagrams in the Acrow manual, namely the absence of diagonal

bracing to the top lift and the 0.5m gaps.39 Mr Bodsworth confirmed that the

‘top lift’ refers to “the deck that the scaffolders stand on.”40 He told the Tribunal

he did not know where the additional 34 braces had been fitted.41

72. Mr Bodsworth said he was “reasonably familiar” with the Australian Standards

but was unsure about clause 8.6 in AS 4576 regarding rigidity. He conceded that

there were “a couple of braces missing” but said “you’ve got to look at it

holistically from the base of the scaffold all the way up the scaffold.”42 He said

35 Transcript of Proceedings 30 June 2015 page 119, line 136 Transcript of Proceedings 30 June 2015 page 132, line 2937 Transcript of Proceedings 30 June 2015 page 199, line 40; page 141,

lines 20-25; page 142, line 3538 Transcript of Proceedings 30 June 2015 page 120, line 2039 Transcript of Proceedings 30 June 2015 page 140, line 4040 Transcript of Proceedings 30 June 2015 page 149, line 4041 Transcript of Proceedings 30 June 2015 page 119, line 3342 Transcript of Proceedings 30 June 2015 page 134, line 10

24

the scaffold was in accordance with the Standards and he stood by that.43

73. The Tribunal asked Mr Bodsworth if he could explain “why it complies with the

Standard when it does not show that the bracing extends from the base of the

scaffold to the top of it”.44 Mr Bodsworth agreed finally that the bracing shown

in the photograph does not go to the top lift and “that it needs to go to the top

lift.”45 However Mr Bodsworth said “there are other things that play a part in it

too, at the end of the day, and I stand by my previous statement. There was not a

risk to health and safety.”46

74. In paragraph 13(c) of his statement, Mr Bodsworth said that the scaffolding

complied with the manufacturer’s instructions. Asked by Mr McCarthy “do you

have a copy of the manual” he replied “no…I have seen the instructions. I do

not have a copy of the instructions but I am not sure which instructions should

have been followed in regard to this scaffolding. Is it Rovera’s or…”.47 Asked

later had he actually seen manufacturer’s instructions prepared by Rovera,

Mr Bodsworth said “no, I have not”.48

75. Mr Bodsworth was taken to the words in the Acrow manual requiring bracing

“all the way to the top of the scaffold” and the diagram showing this.49 Shown

photograph 42, Mr Bodsworth agreed that the photograph did not show

compliance with the Acrow manual “if those manufacturers are relevant.”50

The evidence of Andrea Stodulka

76. The statement from Mr Stodulka provided his curriculum vitae and said:

(a) he first attended the site on 19 March 2014 and certified the scaffolding

plan dated 18 March 2014. At the time only some lower levels had been

constructed;

(b) he had a copy of the scaffolding plans at the time of certification;

43 Transcript of Proceedings 30 June 2015 page 135, line 1544 Transcript of Proceedings 30 June 2015 page 135, line 2745 Transcript of Proceedings 30 June 2015 page 135, line 1546 Transcript of Proceedings 30 June 2015 page 136, line 3147 Transcript of Proceedings 30 June 2015 page 137, line 1248 Transcript of Proceedings 30 June 2015 page 141, line 1049 Acrow manual section 1450 Transcript of Proceedings 30 June 2015 page 139, line 1

25

(c) his certification was intended to apply to the whole of the proposed

scaffolding in accordance with the plans he sighted;

(d) he noted some features of the existing and proposed scaffolding that he

considered to be excess to the requirements of the Australian Standards. In

this context, Mr Stodulka referred to the bolting of the scaffolding to the

masonry of the building and the use of ‘ladder beams’ and ‘horizontal

ledgers’;

(e) the 0.5 metre gaps between the points of attachment of the diagonal

bracing were in conformity with the manufacturer’s designs and industry

practice; and

(f) he visited the site again on 11 November 2014 after the rectification had

been undertaken. He did not think the scaffolding that existed prior to the

rectification work was deficient or created any risk to health and safety.51

77. Mr Stodulka adopted his statement and gave further oral evidence. He shared

the view of Mr Bodsworth that the scaffolding as built may not have strictly

complied with the Acrow manual or the Australian Standards52 but contended it

was safe by virtue of other safety features included in the structure that were not

a feature of the Acrow manual or the Australian Standards.53 Apart from the

additional safety matters referred to by Mr Bodsworth, Mr Stodulka gave

evidence of the buttressing at the corner wall verticals of the scaffolding.

Mr Stodulka noted that the horizontal scaffolding beams were buttressed at the

90-degree corners of the building in an interlacing manner, much like standard

brickwork at the corners of buildings.54

78. Mr Stodulka opined that the corner buttressing provided such a measure of

additional rigidity in the scaffolding structure that the diagonal bracing was in

fact redundant: “I would say that the diagonal bracing made very little

contribution to the stability of the building, whether it had mesh on it, the

51 Exhibit A152 Transcript of Proceedings 30 June 2015 page 177, line 3053 Transcript of Proceedings 30 June 2015 page 166, line 5; page 176,

line 35; page 181, line 40; page 191, line 1554 Transcript of Proceedings 30 June 2015 page 166, line 10-20; page

188, line 5

26

scaffolding, or not”.55 In his opinion, a small number of missing diagonals

below the top lift were essentially irrelevant to the structural safety of the

scaffolding and the 0.5 metre gap in the affixation points is ”totally adequate…

from a structural point of view”.56

79. Mr Stodulka qualified his acceptance of non-compliance with the Australian

Standards. He said that the systems shown in the Standards were in the

alternative to other methods approved by competent people. The present

structure satisfied this alternative.57 The processes in the Australian Standards

were only one of the possible methods of achieving safety.58

80. There was an issue concerning Mr Stodulka’s familiarity with the Australian

Standards. He seemed not to know of the wording of the terms in the Standards

until these were put to him by Mr McCarthy.59

81. During the course of Mr Stodulka’s evidence it became apparent that the

scaffolding had not been constructed strictly in accordance with the plans he had

approved. For unknown reasons a stairwell shown on the plans had been

constructed at a different location.60 Mr Stodulka said that this made no

difference to the rigidity and safety of the structure.61

82. Some parts of Mr Stodulka’s evidence were confusing to the Tribunal. In his

Statement Mr Stodulka says that the horizontal ledgers on this project are:

…at one metre vertical intervals and fully attached to each standard up the entire face of the scaffold…the (Australian) Standard and the (Acrow) manufacturer’s recommendation calls for these elements to be fixed at two metre intervals. By ’doubling up’ on horizontal ledgers Rovera scaffolding added very significantly to the lateral stability of the structure.62

In explaining this situation, Mr Stodulka referred to a number of the 55 Transcript of Proceedings 30 June 2015 page 176, line 20; page 177,

line 15, page 166, line 1056 Transcript of Proceedings 30 June 2015 page 185, line 2557 Transcript of Proceedings 30 June 2015 page 174, line 30; page 181,

line 4058 Transcript of Proceedings 30 June 2015 page 181, line 4059 T documents page 16960 Transcript of Proceedings 30 June 2015 page 172, line 3061 Transcript of Proceedings 30 June 2015 page 190, line 3062 Statement of Andrea Stodulka at [10b]

27

photographs, which show scaffold lifts of two metres. It seemed to the Tribunal

that the ‘doubled up’ ledger replaces the handrail which would otherwise be

placed in the same position at a height of one metre above the working level. If

this is the case, it does not appear to the Tribunal that this arrangement adds to

the stability of the structure as stated by Mr Stodulka.

83. Mr Stodulka also said the structural members in the Acrow system are based

“on a wall thickness of 3.5. The Rovera system has got a wall thickness of 4.8,

so it is a totally different structural strength…its substantially thicker wall

thickness and that would mean that it is probably 25 percent stronger…it has

been tested and, you know, certified to be 25 percent stronger.”63 Later evidence

showed these statements to be untrue. The parties and the Tribunal are now

agreed that the diameters and thicknesses of the steel standards, transoms,

ledgers and longitudinal braces in the two systems are identical.64

84. At the end of Mr Stodulka’s evidence the parties advised the Tribunal that there

would be no further evidence called by either party. The parties were in

agreement that the issues were primarily issues of law and the evidence to date

should be sufficient to resolve the matter. A timetable was set for the parties to

file and serve a summary of their arguments on the points of law, after which

the matter would be re-listed for brief oral submissions.

Applicant’s summary of argument

85. The applicant filed its summary of argument on 17 July 2015. The applicant

noted that section 191 of the WHS Act contains a two step process:

(a) firstly, section 191(1) requires Mr Mason to have formed a reasonable

belief that a contravention of the Act or Regulation had occurred;

(b) secondly, section 191(2) permits the issue of the improvement notice if the

circumstances of the case warrant that course of action.

86. The applicant submitted that the Tribunal was required to:

63 Transcript of Proceedings 30 June 2015 page 186, line 31-35; page 193, line 23-28

64 Transcript of Proceedings 29 April 2016 page 6, line 21

28

(a) determine on the evidence whether the belief formed by Mr Mason was a

reasonable one (section 191(1)); and

(b) if so, then determine whether the contravention warranted the issue of the

improvement notice (section 191(2)).

87. The applicant submitted that the reviewable decision is the decision to issue the

notice at (b) immediately above; and the question at (a) immediately above is a

jurisdictional fact that must exist before the reviewable decision can be lawfully

made. It was said to be the Tribunal’s task to decide both issues. It was said to

be the Tribunal’s role to be satisfied on the evidence before Mr Mason that an

objectively reasonable opinion could have been formed for the purposes of

section 191(1) that a contravention of the Act had occurred.

88. The terms of regulation 225(4) have been addressed above. Regulation 225(4)

arises where “an inspection indicates that a scaffold at a workplace or its

supporting structure creates a risk to health or safety.” The applicant submitted

that Mr Mason purported to form a ‘reasonable belief’ only on the basis that a

contravention of regulation 225(4) had occurred. Regulation 225(4) was the

only provision of the legislation that was cited by Mr Mason in the notice and

by Mr McCabe in the reviewable decision.

89. The applicant noted that the only reason advanced by Mr Mason in the notice

was an alleged failure to erect the scaffolding in accordance with the

manufacturer’s instructions and hence this defect must logically be both the

cause of the risk to health and safety for the purposes of regulation 225(4) and a

breach of the Act or Regulation for the purposes of section 191.

90. The applicant submitted that no breach of regulation 225(4) had occurred for

several reasons and nor was regulation 225(4) capable of being contravened on

the facts of this case. If regulation 225(4) was not a provision that was capable

of contravention, or if there was in fact no contravention of it, then no

reasonable belief could have been formed for the purposes of section 191(1) that

such a breach had occurred and hence, no notice could issue under section

191(2).

29

91. The applicant argued that regulation 225(4) does not impose any duty to avoid

risks to health and safety; rather it imposes a duty to carry out repairs etc to the

identified defective scaffolding. It was the contention of the applicant that

regulation 225(4) could only be contravened if the repairs ordered or indicated

under that regulation by Mr Mason were not carried out. The applicant said that

these were not the circumstances that confronted Mr Mason.

92. The applicant pointed to Mr Mason’s (and Mr McCabe’s) erroneous belief that

the scaffolding was manufactured by Acrow and therefore the relevant

manufacturer’s instructions were those of Acrow. The scaffolding was in fact

Rovera’s own scaffolding. The respondent had not assessed the erection of the

scaffolding against Rovera’s own instructions. There was no evidence as to

what and where the instructions were for the Rovera product and the Tribunal

sought clarification about this at the close of the formal hearings.

93. In the alternative, the applicant argued that there is no legislative requirement to

erect scaffolding in accordance with a manufacturer’s manual; regulations 201

and 202 only go so far as to require that Rovera “have regard to” the

“information provided by the… manufacturer”, that is, that Rovera have regard

to the information that it provided to itself.

94. The applicant argued that regulations 201 and 202 refer to manufacturer’s

instructions as only one of two potential approaches. The second alternative is

to erect the scaffolding having regard to “the instructions provided by a

competent person to the extent that those instructions relate to health and

safety.”

95. The applicant submitted that there was no requirement to comply with AS 4576.

In the alternative, it was argued that the scaffolding as erected did comply with

the Standard. The applicant pointed to paragraph 8.2 of AS 4576, which

provides for a design verified by a competent person. In the present case, the

applicant argued that Mr Stodulka (engineer) and Mr Bodsworth (qualified

scaffolder) had each performed this role.

96. The applicant submitted that Mr Mason (and Mr McCabe) fell into four errors

of law in their respective decisions and that these errors negated the existence of

30

the formation of any valid belief for the purposes of section 191(1) and the issue

of any notice under section 191(2). It was submitted that they:

(a) wrongly assumed that compliance with the manufacturer’s instructions

was a mandatory statutory requirement;

(b) wrongly assumed that the scaffolding was Acrow scaffolding;

(c) failed to ask whether Rovera ‘had regard to’ its own instructions or

information provided to itself; and

(d) failed to inquire or to take account of instructions provided by a

competent person concerning the erection of the scaffolding.

97. The applicant pointed to the evidence of Mr Mason to the effect that the

possibility of collapse was “relatively low”. The applicant relied upon this

statement and other matters in submitting that Mr Mason did not form any view

that there was other than a minimal risk to health and safety. The applicant

noted Mr Mason’s evidence that “if the scaffolding didn’t have any cladding on

it at all I wouldn’t have had any concerns, I would have asked them to fix it.”

Respondent’s summary of argument

98. The respondent filed its summary of argument on 10 August 2015. On behalf of

the respondent, Mr McCarthy submitted that section 191(1) requires the

Tribunal to be satisfied that Mr Mason formed the requisite opinion at the time

of issuing the notice and that it was a reasonable opinion. It was not the role of

Mr McCabe on internal review, nor of the Tribunal, to form its own view on the

matter; the Tribunal’s role under section 191(1) is limited to being satisfied that

Mr Mason’s opinion was a reasonable one.

99. Mr McCarthy rejected the argument of the applicant that regulation 225(4) is

not a provision that could or had been contravened at the time Mr Mason issued

the notice - “section 225(4) mandates actions to be taken where an inspection

indicates that a scaffold creates a risk to health and safety.” The respondent

submitted that Mr Mason had conducted an inspection:

…which indicated to him that the scaffold created a risk to health and safety and he therefore issued an Improvement notice requiring a

31

competent person to certify that any necessary repairs, alterations or additions had been made and the scaffolding had been re-inspected.65

100. Mr McCarthy noted that Mr Mason “did not prescribe what work needed to be

done or that any work needed to be done.” If a competent person had agreed that

the scaffold was structurally sound:

…the competent person could have provided a certificate to that effect and in that manner complied with the improvement notice. That was not done. Rather, 34 pieces of “missing” bracing were added to achieve compliance with item 3.16 of the inspection report.66

101. The respondent also argued for the first time that section 19(1) of the WHS Act

may provide an alternative basis for Mr Mason’s belief that a provision of the

Act or Regulations had been breached and hence any decision to issue the

notice. If the construction for which the applicant contends were to be accepted,

the respondent said it remains the case that Inspector Mason reasonably

believed that the applicant was not conducting its business to ensure, so far as

reasonably practicable, the health and safety of workers on the site.

102. In that situation, the respondent submitted that section 191(2) permitted

Inspector Mason to issue an improvement notice to enforce the duty under

section 19(1).

103. Whatever the merits of the section 19 argument, the fact is that it was not relied

upon by Mr Mason to issue the notice and it is now not open to the respondent

to purport to retrospectively rely upon it.

104. The respondent contended that there was little difference between the Acrow

Cuplok system and Rovera’s Cuplok system such that the Acrow manual was

relevant. The respondent submitted in the alternative that it was reasonable for

Mr Mason to assume that the system was that of Acrow and this factual error

does not vitiate the reasonableness of his belief for the purposes of section

191(1) of the WHS Act.

105. It was submitted that Mr Mason had been aware that AS 4576 provided that

where diagonal bracing systems are used they should extend from the base of

65 Respondents summary of argument at [23]66 Respondent’s summary of argument at [15]

32

the scaffold to the top lift. Mr McCarthy noted that Mr Perrott said at the time

that the work complied with the Standards but Mr Perrott was not called as a

witness. Mr Olsson, who co-signed the inspection report as the supervising

scaffolder, was also not called to give evidence.

106. The respondent relied on the Australian Standards and asserted non-compliance.

In discourse the Tribunal noted that contravention of the Australian Standards is

relevant only if it also amounts to a contravention of the Act. It was properly

conceded by Mr McCarthy that a breach of the Australian Standards per se does

not constitute a breach of any provision of the Act or Regulations.

107. The respondent denied that either Mr Stodulka or Mr Bodsworth provided any

certification of the kind required by the Standards as an alternative method of

compliance. Mr McCarthy expressed concern with the evidence of

Mr Bodsworth to the effect that departure from the Australian Standards is

acceptable by taking a ‘holistic approach’ to whether the scaffold is safe. He

suggested “if the scaffold had failed, as Inspector Mason perceived could occur

in the event of high winds, it is unlikely that anyone would defend non-

compliant scaffold on the basis of a ‘holistic approach’.”67

108. The respondent agreed with the applicant that the Tribunal must assess the issue

of the notice on the basis of the facts as Mr Mason understood them: “the issue

is whether Inspector Mason could reasonably have had that view when he issued

the notice, not whether Inspector McCabe or ACAT might on review form that

belief.” Mr McCarthy submitted that:

when assessing the correct or preferable decision, the Tribunal needs to “stand in the shoes” of Inspector Mason according to the facts and circumstances as he understood them on 4 November 2014…it is not a matter of determining with the benefit of later knowledge and information whether an improvement notice was necessary. It is a question of assessing whether there was an appreciable risk to health and safety and whether the issue of the Notice was a reasonable means of addressing that risk as perceived at that time”.68

109. On the above premise, the evidence and opinions of Messrs Stodulka,

Bodsworth and Savage were irrelevant because they were not available to

67 Respondents summary of argument at [16]68 Respondent’s summary of argument at [20], [37], [38]

33

Mr Mason at the time he issued the notice.

110. The principle of law embodied in the respondent’s submission immediately

above was the subject of considerable argument during the hearing.

Reply to the respondent’s summary of argument

111. On 17 August 2015, the applicant filed its reply to the respondent’s summary of

argument. Apart from repeating various submissions already noted above, the

applicant further submitted that the new argument based on section 19(1) had no

merit because:

(a) it was not in fact a ground that Mr Mason had regard to when issuing the

notice. The evidence discloses unambiguously that Mr Mason formed his

belief for the purposes of section 191(1) on the basis of a purported

contravention of regulation 225(4) and, more particularly, on the alleged

failure of Rovera to comply with the manufacturer’s instructions; and

(b) there had been no ventilation of the terms of section 19(1) at any time,

including during the hearing. In particular there had been no evidence on,

or consideration of, what is ‘reasonably practicable’ and ‘health and safety

requirements’ of section 19(1).

112. The applicant took issue at this time with any assertion that the Rovera

scaffolding system was materially the same as that of Acrow hence justifying

the use of the Acrow manual. In particular, the applicant pointed to the evidence

of Mr Stodulka concerning the additional strength of the members used by

Rovera which provided an additional 25% structural strength over the Acrow

system. (As noted earlier, the applicant later abandoned this argument when

evidence was given as to the physical properties of the structural members in

both systems, which, apart from the galvanised finish on the Acrow scaffold,

showed the two systems to be identical.)

113. The hearing resumed on 17 September 2015 for oral submissions. Mr Walker

SC summarised his written submissions. In its broadest form, Mr Walker SC

argued that:

(a) section 191(1) did not entail any merits review by the Tribunal. The

34

Tribunal’s role was limited to determining whether Mr Mason in fact

formed a reasonable belief that a contravention of the Act or Regulations

that occurred. In practical terms this came down to determining whether

there was any feature of the intellectual process undertaken by Mr Mason

that vitiated his declared belief by reason of some error of law. In the

present case this error was said by the applicant to have arisen by reason

of:

(i) Mr Mason’s failure to make proper enquiries of Rovera or of a

person qualified in scaffolding before forming his belief;

(ii) Mr Mason’s reliance on an erroneous construction of regulation

225(4) to the effect that his observations on site were sufficient to

activate regulation 225(4) and therefore justify a reasonable belief

that a contravention of the Regulation had occurred;

(iii) Mr Mason’s factually erroneous belief that an Acrow system was

being used;

(iv) Mr Mason’s erroneous belief that Rovera was obliged at law to

comply with the Acrow manual; and

(v) Mr Mason’s erroneous belief that Rovera had not complied with the

Australian Standards.69

(b) section 191(2) did entail traditional merits review.70 The task for the

Tribunal was to determine whether any contravention of the Act or

Regulation (assuming there to be one) justified the issue of the

improvement notice. The Tribunal was not limited to the information

before Mr Mason and could have regard to later information to the extent

that it related to the facts as they existed at the time of the issue of the

notice, irrespective of whether Mr Mason was aware of this information at

that time.71

114. Mr Walker SC indicated his concurrence with a view put by the Tribunal:

You could argue…that part of the reason why there is a merits review

69 Transcript of Proceedings 17 September 2015 page 10, line 35; page 12, line 10; page 13, line 5, page 28, line 15

70 Transcript of Proceedings 17 September 2015 page 11, line 4071 Transcript of Proceedings 17 September 2015 page 12, lines 5 & 30-

35

35

[s191(2)] is because Mr Mason…or someone in his position…has to act…fairly quickly and they have to call it as they see it on the spur of the moment, more or less [s191(1)]. Then you get the merits review process that allows you to take more considered time to work out…once all the facts are in about the truth of the matter at the time, was he right in an objective sense.72

115. As comprehended by the Tribunal, the principal thrusts of Mr Walker SC’s

submissions were as follows:

(a) Section 191(1) is only concerned with the formation of a reasonable belief

by Mr Mason that a contravention of the Act (or Regulation) has occurred.

(b) Section 191(2) is only concerned with whether an improvement notice

should issue to remedy the contravention that underpinned the belief in

section 191(1).

(c) Section 191 does not per se raise any issue of risk to health and safety and

could be activated by a contravention of the Act or Regulation that had no

health and safety ramifications.

(d) The improvement notice can only issue under section 191(2) for the

specific identified contravention of the Act or Regulation in the section

191(1) phase.

(e) The only contravention identified by the respondent was the contravention

of regulation 225(4) expressly referred to in the notice. The validity of

Mr Mason’s belief under section 191(1) and the merits of the decision to

issue the notice under section 191(2) must be assessed by reference to

whether there had in fact been any contravention of this regulation alone.

(f) Regulation 225(4) is not a provision that imposes any obligation on

Rovera until such time as Rovera fails to carry out the repairs or

alterations ordered or indicated by Mr Mason as a competent person in

accordance with regulation 225(4)(a) and (b). This circumstance never

arose and hence regulation 225(4) has no application and consequentially

there is no lawful foundation for the belief formed under section 191(1)

and the decision to issue the notice under section 191(2).

(g) In the alternative, regulation 225(4) is only concerned with scaffolding

that ‘creates a risk to health and safety’ and is not specifically engaged

72 Transcript of Proceedings 17 September 2015 page 31, line 16

36

simply by a contravention of the Act or Regulation. It would not be

engaged by a contravention of the Act or Regulation that had no negative

health and safety implications. For example, scaffolding may lack some

feature required in the Act or Regulation but may be so constructed that it

may be substantially safer than any structure that merely complied with

the Act or the Regulation.

(h) In the present case, even if the scaffolding did not strictly comply with the

Act or Regulation, it contained additional safety features that rendered it

as safe an anything anticipated by the Act or the Regulation. Mr Walker

SC said that “Mr Stodulka goes to some lengths to tell you the aspects of

this scaffolding which were additional to any requirements which gave it

added strength…ladder bracing; horizontal ledgers at one metre rather that

at two metres as required; ties to the building including more than

required; and diagonal bracing on every second or third bay when Acrow

only recommends every fourth bay…the evidence from Mr Stodulka is

that this was over-engineered…the requirement to minimise that risk has

been entirely properly dealt with.”73

(i) The applicant did not concede that there had been any contravention of the

Act or Regulation. Even if there may have been non-compliance with

some aspects of the Acrow manual and some aspects of the Australian

Standards, compliance with these documents was not mandated under the

Act and so non-compliance with them did not constitute a contravention

of the Act or Regulation.

(j) In the further alternative, the scaffolding was not a Acrow product and so

reference to the Acrow manual constituted the adoption of an irrelevant

consideration; and the Australian Standards had been complied with via

the options within the Standards for alternative solutions approved by a

competent person.

(k) The respondent’s case was only to the effect that there had been some

alleged contraventions of the Acrow manual and the Australian Standards

from which a lack of safety was inferred as a necessary consequence of

this contravention. The applicant denied that any such automatic inference

arose from a mere finding of a contravention of some part of the Act or 73 Transcript of Proceedings 17 September 2015 page 26, line 11

37

Regulation let alone a contravention of the Acrow manual or Australian

Standards which were respectively irrelevant and not mandatory.

(l) The scaffolding as built was safe and there was evidence of competent

persons to this effect. There was no evidence that the structure was a risk

to health and safety. The respondent’s case rested wholly on an inference

of risk to health and safety to be drawn from the existence of some degree

of non-compliance with the Acrow manual and the Australian Standards.

116. Mr Walker SC took issue with Mr Mason’s evidence that he would not have

issued the improvement notice but for the presence of the polymer cladding.

Mr Walker SC drew attention to the evidence of Mr Bodsworth and

Mr Stodulka that:

(a) the clips affixing the polymer were designed to give way at a certain wind

velocity and would cause no additional stress on the structure at these

speeds;

(b) the cladding had nothing to do with structural rigidity to which the bracing

related, and so the presence or absence of the polymer cladding was

irrelevant to the issue of the bracing;

(c) the above witnesses described the additional load from the polymer as

being ‘minimal’ or ‘miniscule’. There was no evidence from the

respondent in rebuttal.74 The evidence on the precise nature of the polymer

clips was sketchy. Mr Bodsworth had the opportunity to describe the clips

in some detail when he was asked “did you see these clips actually used

on the mesh at the Lend Lease site” but he neglected to do so.75 Mr Mason

said that he also could not recall the fixing method used, and so is in no

position to deny the applicant’s assertions.

117. Mr Walker SC noted the belated reliance on section 19 and the absence of any

evidence directed to the issues raised in that section.76

118. Mr McCarthy concurred with the propositions by Mr Walker SC to the effect

that:

74 Transcript of Proceedings 17 September 2015 page 16, lines 10-1875 Transcript of Proceedings 30 June 2015 page 120, line 3476 Transcript of Proceedings 17 September 2015 page 24, line 5

38

(a) the task of the Tribunal required it to be satisfied that Mr Mason had

‘reasonably’ formed the view required under section 191(1). This required

the Tribunal to consider whether there were any vitiating factors including

a reasonable evidential basis for the belief or any failure to make

reasonable inquiries;77 and

(b) section 191(2) introduced a merits review process.78

119. Mr McCarthy contended that Mr Mason’s belief that a contravention of the Act

or Regulation had occurred was justified by:

(a) the observed non-compliance with the Acrow manual in relation to the

diagonal bracing which “did not comply with the manufacturer’s

instructions as he understood them”;79

(b) the observed non-compliance with the Australian Standards by reason of

the above factors;

(c) the existence of the polymer cladding with its capacity for adding wind

load; and

(d) the resistance encountered from Rovera to making the changes when the

matter was raised on site.80

120. There followed a lengthy discourse between Mr McCarthy, the Tribunal and

Mr Walker SC on the issue of precisely what contravention of the Act or

Regulation Mr Mason had relied upon. Mr McCarthy eventually rightly

conceded that the only contravention relied upon was that of regulation 225(4).81

121. At other points Mr McCarthy appeared to rightly concede that nothing in the

Act or Regulation elevated the manufacturer’s manual or the Australian

Standards to more than a relevant consideration to which regard must be had –

“there has never been any quarrel with the fact that there is no statutory

requirement or strict requirement to follow manufacturer’s instructions.”82

77 Transcript of Proceedings 17 September 2015 page 33, line 1078 Transcript of Proceedings 17 September 2015 page 32, line 2079 Transcript of Proceedings 17 September 2015 page 34, line 580 Transcript of Proceedings 17 September 2015 page 34, lines 5-3681 Transcript of Proceedings 17 September 2015 page 42, line 5 – page

44, line 1582 Transcript of Proceedings 17 September 2015 page 43, line 30

39

122. Mr McCarthy conceded that not all non-compliance with provisions of the Act

or Regulation necessarily raised health and safety issues; and that health and

safety issues came in matters of degree.83 It was put to him by the Tribunal that

it was a non sequitur on Mr Mason’s part to equate a non-compliance (assuming

such existed) with a statutory provision as necessarily implying a health and

safety issue, to which Mr McCarthy responded:

I follow that, but that is ultimately the question of fact that is left for the Tribunal…the point I’m driving at is if the Tribunal comes to the view that notwithstanding all those departures there still wasn’t a risk to health and safety then the notice should fall away with the benefit of hindsight. 84

123. It was put to Mr McCarthy that reliance upon regulation 225(4) brought with it

the consequence that the respondent had to show a belief in Mr Mason that any

observed contravention on site went to the issue of health and safety. It was

insufficient to simply point to a contravention per se including a contravention

of manufacturer’s instructions or of the Australian Standards if there was no

evidence that those alleged contraventions represented a risk to health and

safety.85

124. At the end of the discourse Mr McCarthy conceded that the risk to health and

safety arising from the contravention nominated by Mr Mason was an inference

drawn from the fact of the alleged contravention alone. He argued that the

Australian Standards are of such authority that the non-compliance must point

to a risk to health and safety.86 The Tribunal expressed the view that this was a

‘long bow’87 to which Mr McCarthy responded “it is a question of degree.”88

125. On 21 September 2015 the applicant filed unsolicited further submissions on

regulation 225(4). The applicant expressed concerns that the Tribunal may have

misunderstood the nature and role of regulation 225(4). The concern was said to

arise from the Tribunal’s question concerning whether any operation of

83 Transcript of Proceedings 17 September 2015 page 48, line 584 Transcript of Proceedings 17 September 2015 page 48, line 1785 Transcript of Proceedings 17 September 2015 page 55, line 35-page

61, line 4086 Transcript of Proceedings 17 September 2015 page 61 35; page 86,

line 4087 Transcript of Proceedings 17 September 2015 page 62, line 2588 Transcript of Proceedings 17 September 2015 page 62, line 30

40

regulation 225(4) was dependent on any ‘notice’ being served on a person. This

issue has been addressed above. The short answer is that there is no explicit

requirement for a notice under regulation 225(4) but it is implicit. Some form of

notice must materialize from the inspection in order to trigger the rectification

or repairs that regulation 225(4) speaks of. The person in control of the site

cannot be expected to read the inspector’s mind. The applicant argued more

fully that the outcome of the ‘inspection’ referred to in regulation 225(4) is the

triggering mechanism and in particular there would need to be a finding

indicating a risk to health and safety for this trigger to apply and not a mere non-

compliance with the AS or even a breach of a provision of the Act or Regulation

that does not present a risk to health and safety.

126. The applicant again contended that regulation 225(4) was relevant only to the

ordering of repairs, alterations and additions and was not capable of being

breached until such an order was made and not complied with. It was contended

by the applicant that these were not the facts of this case because Rovera had

immediately complied with the notice.

127. The respondent did not object to the unsolicited further submissions from the

applicant. The respondent sought to file its own further submissions on

evidence. The applicant objected to these further submissions in a letter of

30 October 2015 to the Registrar. The Tribunal considered and dismissed the

objections in short written reasons.

128. The respondent’s further submissions summarised the evidence relied upon by

the respondent in support of a finding that the scaffolding as erected did in fact

represent a risk to health and safety. The evidence covered the grounds referred

to above, namely non-compliance with the Acrow manual, non-compliance with

the Australian Standards and the presence of the polymer mesh.

129. The respondent criticised the evidence of Mr Bodsworth and in particular his

‘holistic approach’ to the adequacy of the scaffolding. The respondent described

the willingness of Mr Bodsworth to depart from compliance with the Australian

Standards as itself being a risk to health and safety. The respondent noted that

there had been no certified alternative design as envisaged by the Australian

41

Standards by anyone including Mr Stodulka. In the absence of any such

certification, the respondent contended that the scaffolding should have

complied with the Australian Standards.

Questions from the Tribunal

130. At the close of the hearings the Tribunal sought further detail from the parties

on salient points of their arguments including the existence or otherwise of

Rovera manufacturer’s instructions; the fixing methods used for the

containment sheeting; and the relative strengths of the Rovera and Acrow

scaffold members.

Manufacturer’s instructions

131. Reference is made in the legislation and in the Australian Standards to the need

to have regard to information and instructions provided by the manufacturer or

supplier of plant or equipment on the site. As previously noted, the applicant

contended and the Tribunal accepts that the Acrow Cuplok manual was not

issued by Rovera and is not applicable to the Rovera Cuplok scaffolding system.

Mr Mason gave evidence that he was familiar with the Acrow manual.

Mr Bodsworth said he had seen such a guide for the Rovera system but gave no

detail of it. Mr Savage made no reference to such a document.

132. The Tribunal asked Mr Walker SC “are there instructions for the Rovera

scaffolding” and Mr Walker SC replied “there are none in evidence so I haven’t

brought the matter further.” At the resumed hearing in September 2015,

Mr Walker SC conceded of the Acrow Cuplok and Rovera Cuplok systems that

“the locking system is the same. I don’t think there’s any doubt that you put the

cup down, turn it, you give it a belt with a hammer and it locks in”.89 In

response to the Tribunal’s request for information about the existence of a

Rovera manual, Rovera replied that there was no “dedicated set of instructions,

the sort of Rovera equivalent of the Acrow document” but that Rovera had

“scaffolding notes which refer to the assembly of the product.” These notes

were later provided to the Tribunal.90

133. A two-page document ‘Scaffolding Notes – Gungahlin Commercial Offices’

89 Transcript of Proceedings 17 September 2015 page 19, line 1290 Transcript of Proceedings 29 April 2016 page 19, line 16

42

was tabled on 29 April 2016. The scaffolding notes state:

all erection work is to be carried out in a safe, tradesmanlike manner and be in accordance with this drawing, AS 1576, AS 4576, local authority requirements and workplace health and safety regulations…unless noted otherwise…the distance between face bracing panels not to exceed six bays…the scaffold is to be tied to suitable locations on the supporting structure at each end and every 2nd standard horizontally (single standard ties) while vertical spacings are not to exceed 4m…if shadecloth is used then reduce horizontal tie distance to 2.4 metres max.

The spacing of the standards is given as 2.4 metres. The Tribunal notes at this

point that the Rovera scaffolding notes require compliance with the relevant

Australian Standards, which include the need for face bracing to run full height

to the top working level of the scaffold.

Containment sheeting

134. There was evidence from Mr Mason that he would not have issued the

improvement notice had containment sheeting not been attached to the

scaffolding. The Tribunal sought further information as to the methods used on

the site to fix the containment sheeting and responses from the parties were

entered into evidence on 29 April 2016. Mr Mason said in evidence that “some

parts of the scaffolding were tied up with cable ties.” When he was asked “were

the clips designed to enable the cladding to detach from the scaffolding in the

event of a high wind event”, Mr Mason said “no, I don’t believe so”. Replying

to the Tribunal’s request for further information, the Tribunal was told that:

Mr Mason is unable to recall the fixing method used on the scaffolding on 4 November 2014. The respondent is therefore unable to provide the Tribunal with any further evidence as to how the polymer sheeting was affixed to the scaffolding.91

135. Mr Bodsworth’s evidence was that containment sheeting is normally held in

place by clips which release and allow “the wind to dissipate”. Asked “did you

see these clips actually used on the mesh at the Lend Lease site”, Mr Bodsworth

said “yes” but gave no further detail. Asked about possible wind loads because

of the mesh, Mr Bodsworth said that, in his opinion, the role of the diagonal

bracing was “minimal” if the wind was coming against the face of the scaffold

91 Respondents answers to additional Tribunal questions dated 19 February 2016

43

and “minimal to nil” if the wind was coming along the face of the building.92 In

response to the later questions from the Tribunal, Rovera supplied no

photographic or documentary evidence but stated “Mr Bodsworth is correct; the

Unimesh was fixed to the scaffolding using a general purpose clip called a

“Kwik as Klip”…designed to fail in high winds thus complying with section

8.10 of AS4576.”93

The strength of the Rovera Cuplok scaffolding

136. As noted previously, the Tribunal found Mr Stodulka’s evidence as to the size

of the structural components to be confusing. The Tribunal therefore asked

again “in what way(s) is the Rovera Cuplok system different from the Acrow

cuplok system”. The applicant provided a written reply confirming the earlier

statement of Mr Savage that the Acrow system is galvanised and the Rovera

system is not. Rovera then conceded that “the Cuploking system itself is the

same on both systems.” Rovera also wrote that “the (Acrow) galvanised

scaffolding standards are 3.2mm wall thickness and use the galvanised finish to

attain the 4mm wall thickness, thus complying with the Australian Standards.

The Rovera system is stronger because it is made of thicker steel.” Later

evidence shows these statements to be incorrect and misleading.

The issues for the Tribunal

137. The issues for the Tribunal are:

(a) What were the processes engaged in and facts known to Mr Mason when

he formed the view for the purposes of section 191(1) that there had been

a contravention of the Act or Regulation.

(b) Were there any factors in the processes or assumed facts that constitute an

error of law such as to vitiate the reasonableness of the formed belief,

including any misapprehension of the relevance of regulation 225(4), the

Acrow manual and the Australian Standards?

(c) If the belief formed under section 191(1) is valid, then what is the proper

construction of section 191(2). In particular does it import a traditional

merits review or only some more restricted review process. Is it open to

92 Transcript of Proceedings 30 June 2015 page 120, lines 20-22; page 132, line 40

93 Applicant’s response to Tribunal question 4

44

the Tribunal to have regard to the facts as they existed at the time the

notice was issued irrespective of whether Mr Mason was aware of those

facts?

(d) What is the proper construction of regulation 225(4); is it the kind of

provision that is capable of giving rise to a contravention under section

191(1) and if so, was there in fact any contravention of regulation 225(4)?

(e) Depending on the answers to (c) and (d) immediately above, does the

Tribunal believe that the issue of the improvement notice was justified on

the facts to which regard may be had?

The section 191(1) belief

138. The reasonableness of the belief required by section 191(1) must be judged

objectively. It need be only a reasonable belief and not necessarily the belief

that the Tribunal would have formed on the same evidence. Reasonable minds

can differ on these things.

139. The applicant argued that Mr Mason’s belief was not ‘reasonable’ because he

acted without making enquiries of the builder or Rovera as to the detail of the

scaffolding. The Tribunal agrees that Mr Mason could have made further

enquires with Rovera before forming any view under section 191(1) and issuing

the improvement notice. The Tribunal was informed that the reason that

Mr Mason did not do so was the original resistance encountered on site when he

raised the non-compliance matter with Mr Perrott. Whilst the Tribunal may not

have reacted in the same manner as Mr Mason did, we cannot say that it was an

unreasonable approach on his part.

140. Had Mr Mason been aware that the system used was not an Acrow system and

that Rovera was relying on the engineering plans approved by Mr Stodulka, he

would probably still have formed the view that a contravention of the Australian

Standards had occurred and issued the notice. The Tribunal has come to this

view based on the importance that Mr Mason attached to the Acrow manual and

to the Standards. Putting to one side the statutory issues, this view was open to

Mr Mason on the evidence and the Tribunal does not find that it was an

45

unreasonable position for him to have adopted.94

141. One concern the Tribunal has for the purpose of section 191(1) is with

Mr Mason’s assumption that a non-compliance with the Australian Standards or

the Acrow manual necessarily gives rise to a risk to health and safety within the

meaning of regulation 225(4). In the Tribunal’s view this is a non sequitur for

the reason that a contravention may be minor and may be more than

compensated by other safety features.

142. Section 191(1) required Mr Mason to form a reasonable belief that a

contravention had occurred. To form that view he had to focus on one or more

potential contraventions of the Act or Regulations and be satisfied that they had

in fact occurred. He specifically focused on the one potential contravention,

namely that of regulation 225(4); without specifically having indicated whether

the non-compliances in question represented a risk to health and safety for the

purposes of regulation 225(4).

143. The respondent argued that Mr Mason should be taken to have formed a

negative view on the health and safety risk for the purposes of regulation 225(4)

in that the risk to health and safety followed axiomatically from a non-

compliance with the Acrow manual or from the Australian Standards. If

Mr Mason did in fact think in this way, then his view was not a reasonable one.

The Tribunal is however prepared to accept that Mr Mason formed his belief

that there was a risk to health and safety to workers on the site as the result of

seeing an incomplete scaffold and the obvious absence of bracing in several

parts of the scaffold structure.

144. It is not sufficient that there be just any level of risk to health and safety at all.

Such would be the case for the most perfectly engineered and complying

structure. The Tribunal pressed the parties on the issue of the degree of risk

envisaged by regulation 225(4) but received no helpful response. It would no

doubt be possible to apply the usual range of adjectives such as ‘substantial’ or

‘material’ etc but this does not take the matter far. The Tribunal has adopted a

comparative test and asked itself the question of whether the structure as built is 94 Transcript of Proceedings 17 September 2015 page 39, line 25; page

78, line 20

46

more or less safe than if the structure had complied with the Australian

Standards. The applicant’s witnesses testified that the structure was as safe as

one that complied with the Australian Standards or more so due to the over

engineering features. The Tribunal does not accept that these over engineering

features existed and so does not accept the evidence of these witnesses on this

point. The Tribunal is of the view that the applicant has not provided evidence

that the scaffolding at the time of Mr Mason’s visit was as safe as it might have

been had it complied with the Australian Standards. Accordingly, it was

reasonable for Mr Mason to have a belief that the structure presented a risk to

health and safety at the time the notice issued. Because of the height of the

scaffolding, the Tribunal also considers it reasonable for Mr Mason to believe

that this risk was considerable.

145. The Tribunal accepts that the WHS Act does not require strict compliance with

Australian Standards AS 1576 and AS 4576. However, the Tribunal shares the

concern of the respondent that Mr Bodsworth, the Regional Environmental

Health and Safety Manager for Lend Lease, should take a view that “departure

from Australian Standards is acceptable by taking a ‘holistic approach’ to

whether the scaffold is safe.” Mr Bodsworth agreed he was required to

implement the guidelines issued by Lend Lease and that these guidelines

mandated compliance with the Australian Standards on Lend Lease building

sites. The respondent has submitted that the attitude of Mr Bodsworth is

unacceptable and is itself a risk to the health and safety of workers on site. The

Tribunal notes the observation of the respondent that “if the scaffold had failed,

as Inspector Mason perceived could occur in the event of high winds, it is

unlikely that anyone would defend non-compliant scaffold on the basis of a

“holistic approach.”95

146. The Tribunal accepts that Mr Mason personally held the view that the non-

compliances with the Australian Standards, the Acrow manual and the presence

of the polymer sheeting represented a risk to health and safety.

Conclusion

95 Transcript of Proceedings 30 June 2015 page 146, line 10; respondents summary of argument at [16]

47

147. In summary, on the balance of probabilities the Tribunal is satisfied that:

(a) the scaffolding on site did not comply with the Australian Standards or the

Acrow manual;

(b) there was no compensating over engineering of the scaffolding to make up

for the above non-compliances;

(c) Mr Mason did not conclude that the non-compliance with the Australian

Standards and Acrow manual alone raised a risk to public health and

safety;

(d) Mr Mason concluded that the above non-compliances coupled with the

presence of the polymer sheeting did raise an issue of public health and

safety;

(e) when Mr Mason issued the improvement notice he deliberately nominated

a breach of regulation 225(4) that related expressly to scaffolding where

there is a risk to health and safety;

(f) he had reasonable grounds for believing that the risk to health and safety

existed; and

(g) when Mr Mason issued the improvement notice nominating a breach of

regulation 225(4) he had not identified any other alleged breach of the Act

or Regulations and did not purport to rely upon any other alleged breach.

148. Section 191 expressly requires a breach of the Act or Regulations. If a perceived

risk to public health and safety in the scaffolding under regulation 225(4) is of

itself also a breach of the Act or Regulation, then the improvement notice was

properly issued. If the perceived risk to health and safety is not of itself a breach

of the Act or Regulation, then the improvement notice was not properly issued.

149. Mr McCarthy conceded that the non-compliance with the Australian Standards

and Acrow manual were not of themselves breaches of any provision of the Act

or Regulation. So much is clear on the face of the legislation. Therefore even if

these non-compliances formed the basis for Mr Mason’s belief that there was

risk to public health and safety under regulation 225(4), they cannot provide the

basis for the issue of an improvement notice. These non-compliances could have

provided the basis for a direction, order or indication (however described) for

rectification under regulation 225(4), but this is not what Mr Mason chose to do

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in the present case.

150. All that is left to the respondent is the argument that the mere fact of the health

and safety concern arising under regulation 225(4) (without the issue of any

prior notice or indication or direction under that regulation) is enough to

constitute a breach of a provision of the Act or Regulation so as to justify the

improvement notice. This is plainly not so. It may be that if an order, direction

or indication had been issued under regulation 225(4) and the applicant had not

complied with that direction, then a relevant breach of the Act would have

occurred which may have justified an improvement notice. But again these are

not the facts of this case.

151. The above difficulties arise from trying to conflate two different statutory

regimes into the one. It does not work.

152. Mr Mason should have adopted one of two separate courses of action. He

should have:

(a) issued a direction, order or indication under regulation 225(4) for

rectification work; or

(b) identified a breach of the Act or Regulations (which is not the same as a

breach of the Australian Standards or the Acrow manual) and issued an

improvement notice based on the identified breach.

He did neither but rather purported to conflate the two separate processes.

153. For these reasons the Tribunal is of the view that the improvement notice was

not properly issued under section 191(1) and the issue of section 19(2) does not

arise.

154. If however the Tribunal is wrong in its construction of the interaction between

section 191 and regulation 225(4) such that the notice was validly issued, then

the Tribunal would have found for the purposes of section 191(2) that the notice

was reasonably issued for the reasons given above.

155. Section 68(3) of the ACAT Act sets out the orders the Tribunal is required to

make when reviewing a decision. In the circumstances of this matter the

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decision under review is set aside and a decision is substituted that a notice

under section 191(2) of the WHS Act not be issued.

……………………………Senior Member A Anforth

REASONS FOR DECISION OF SENIOR MEMBER PEGRUM

156. The Work Health and Safety Act 2011 provides that the main object of the Act is

“to secure the health and safety of workers and workplaces”. In furthering this

Object, “regard must be had to the principle that workers and other persons

should be given the highest level of protection against harm to their health,

safety and welfare from hazards and risks arising from work or from specified

types of substances or plant as is reasonably practicable.”96

157. Section 191 of the Work Health and Safety Act 2011 “applies if an inspector

reasonably believes that a person…is contravening a provision of the Act.”

Section 16 of the Legislation Act 2001 defines the term ‘provision’ as “any

words or anything else that forms part of the Act or instrument.” The object of

the Act forms part of the Act and is therefore a provision of the Act.

158. The Tribunal has concluded at paragraph 144 above that it was reasonable for

Mr Mason to have a belief that the structure presented a risk to health and safety

at the time the notice issued. The Tribunal has also concluded that, because of

the height of the scaffolding and the presence of the containment sheeting, it

was reasonable for Mr Mason to believe that this risk was considerable.

159. The existence of this reasonable belief that a person was contravening the object

of the Act meets the requirement of section 191 for the issue of an improvement

notice.

96 Section 3 of the WHS Act

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160. Regulation 225(4) applies “if an inspection indicates that a scaffold at a

workplace or its supporting structure creates a risk to health or safety” and the

regulation then requires certain actions by “the person with management or

control of the scaffold” who must ensure that “any necessary repairs, alterations

and additions are made and carried out and…the scaffold and its supporting

structure are inspected again by a competent person before use of the scaffold is

resumed”. Mr Mason’s inspection indicated to him that the scaffold created a

risk to health and safety. Regulation 225(4) does not provide for and does not

require a notice or direction in order to be valid.

161. The applicant contends that Mr Mason failed to make proper enquiries before

forming his belief that a risk to health and safety existed on the site. There is no

requirement in the Act or the Regulation for Mr Mason to make any enquiries.

Moreover, Mr Mason received no assurances that his concerns would be

investigated or that the defects he had identified on site would be remedied.

162. It is clear from the evidence that discussions on the site broke down. Section

191 applies “if an inspector reasonably believes that a person…has contravened

a provision in circumstances that make it likely that the contravention will

continue or be repeated.” Mr Mason’s reasonable belief that the deficiencies in

the scaffolding presented a risk to health and safety and that it was likely that

this risk would “continue or be repeated” satisfies the requirements of section

191 for the issue of an improvement notice.

163. The respondent’s summary of argument at [38] contended that it is a question

for the Tribunal to assess “whether there was an appreciable risk to health and

safety and whether the issue of the notice was a reasonable means of addressing

that risk as perceived at that time”. I am of the view that Mr Mason had a

reasonable belief that there was an appreciable risk to health and safety, that the

issue of the improvement notice was a reasonable means of addressing that risk

and that this action was consistent with the Object of the Act “to secure the

health and safety of workers and workplaces.”

164. I am of the view that Mr Mason acted in accordance with his responsibilities as

an inspector appointed under the Work Health and Safety Act 2011 “to require

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compliance with this Act through the issuing of notices.”97

165. For these reasons I am of the view that the decision under review should be

confirmed.

………………………………..Senior Member R Pegrum

97 see section 160(d) of the WHS Act

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HEARING DETAILS

FILE NUMBER: AT 110/2014

PARTIES, APPLICANT: Rovera Scaffolding (ACT) Pty Ltd

PARTIES, RESPONDENT: Director-General of The Chief Minister, Treasury & Economic Development Directorate

COUNSEL APPEARING, APPLICANT Mr P Walker SC

COUNSEL APPEARING, RESPONDENT Mr G McCarthy, Mr R Clynes

SOLICITORS FOR APPLICANT O’Connor Harris & Co Solicitors

SOLICITORS FOR RESPONDENT ACT Government Solicitor

TRIBUNAL MEMBERS: Senior Member A Anforth, Senior Member R Pegrum

DATES OF HEARING: 29 June 2015, 30 June 2015, 17 September 2015, 29 April 2016

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