Growthbuilt Pty Ltd v SafeWork NSW  NSWIRComm 1002 reinforces the position that safety inspectors must have a reasonable belief based on objective factors before issuing a prohibition notice.
A SafeWork NSW inspector issued a prohibition notice, despite the Applicant providing written advice from an engineer that two cracks in a wall were not in danger of collapse and were safe for the Applicant to continue working in the area.
The Applicant sought an internal review of the decision to issue the prohibition notice, but SafeWork NSW advised that as the prohibition notice had been complied with, the decision to issue it was not reviewable and the review would be discontinued. The Applicant took the matter to the Industrial Relations Commission (IRC) because it did not want on its record a Prohibition Notice having been issued.
Test of reasonable belief
The issue in this case was not whether the Inspector held a belief, but whether such a belief was reasonable in the circumstances based on an objective test. That is, the subjective views of the inspector were not relevant.
The IRC found that, objectively, an inspector must have an objectively reasonable and balanced approach in issuing the notice. An inspector cannot make assumptions and act on them without, at least, attempting to test in a timely and practical manner, the validity of those assumptions.
In issuing the prohibition notice, the inspector incorrectly assumed that an activity was occurring at the site that involved a serious risk to health and safety. His assumptions were based on:
- the presence of workers on the site
- an engineer's opinion that the wall was not at risk of collapse, meaning that works were likely to continue before the risk was remedied
- the presence of an excavator on site
- the belief that bulk excavation was continuing on the site.
The Inspector failed to make reasonable inquiries of the circumstances, where the excavator and workers were actually on site for rectification work. The inspector also did not regard the engineers email as being sufficient because it was not on letterhead, and the Inspector did not consider making further enquiries.
As a result of this analysis, the IRC found that the Prohibition Notice was not validly issued and the review by the Applicant was successful. The IRC also held that the fact that the Prohibition Notice had been complied with, did not render the decision non-reviewable and emphasised that SafeWork NSW should have completed the internal review.
Inspectors must test the validity of any assumptions they hold, which involves making reasonable inquiries. However, reasonable inquiries does not extend to undertaking a full investigation nor establishing the level of proof of an actual breach of the WHS Act.
If your business is issued with any enforcement notices, you should consider the reasons provided for the notice and assess whether a review of the notice should be sought. This will depend on whether the reasons provided by a safety inspector are supported by objective evidence that would reasonably lead a person to believe that there is an existing risk involving the health or safety of a person.
If you are not satisfied that an inspector had a reasonable belief based on objective factors, an application may be made to review an enforcement notice. The issuing of a notice is still reviewable, even if the notice has been complied with. In the case of prohibition notices, it is important to note however, that compliance with the notice is still required while the review is being undertaken.