Making WHS Decisions that Matter: Cost, Controls & Common Sense

BACKGROUND

In a significant decision for businesses managing workplace health and safety (WHS) obligations, the NSW Industrial Relations Commission has set aside an Improvement Notice issued to Catholic Healthcare Limited by SafeWork NSW.

The detailed analysis of this recent decision provides critical guidance on the interpretation of “reasonably practicable” in WHS legislation and the requisite “state of mind” for an Improvement Notice to be issued.

KEY FACTS

Catholic Healthcare Limited (Catholic Healthcare) operate 41 aged care facilities in Australia (39 in NSW, 2 in QLD) and provide accommodation, meals, personal care, medical care and social and recreational activities to elderly clients.

On 17 July 2024, Inspector Chigofito (the Inspector) issued an Improvement Notice to Catholic Healthcare pursuant to section 191 of the Work Health and Safety Act 2011 (NSW) (WHS Act). The Inspector issuing the notice as he “reasonably believed” Catholic Healthcare had contravened section 19 of the WHS Act and regulation 44 of the Work Health and Safety Regulation 2017 (NSW) (WHS Regulations), alleging that:

• The Inspector recommended, during a visit to Catholic Healthcare’s St Anne’s – Hunters Hill facility (St Anne’s) on 22 February 2023, incorporation of fit testing for all workers in accordance with regulation 44 of the WHS  Regulations and AS/NZS 1715:2009;
• St Anne’s experienced COVID-19 outbreaks on three occasions: 1 May to 29 May 2023; 26 November to 22 December 2023; and 5 May to 26 May 2024;
• On a visit to the Catholic Healthcare Head Office on 15 July 2024, the Inspector was informed by PCBU representatives that workers at Catholic Healthcare had not undergone fit testing for P2/N95 masks; and
• This omission constituted a breach of the WHS Act (section 19) and the WHS Regulations (regulation 44).

Catholic Healthcare challenged the notice, arguing that:

• Regulation 44 of the WHS Regulations did not apply to its operations;
• Infection control measures undertaken at its facilities, including fit checking and PPE spotters, were sufficient to comply with section 19 of the WHS Act (primary duty of care); and
• Fit testing was not “reasonably practicable” (for the purposes of s 18 of the WHS Act) due to cost and operational constraints.

DECISION SUMMARY

The Commission found:

• Regulation 44 did not apply to Catholic Healthcare as it is contingent on other specific duties under the WHS Regulations, which were not engaged in this case.
• The Inspector did not hold a reasonable belief that Catholic Healthcare was breaching section 19 of the WHS Act, as the Inspector failed to assess whether fit testing was reasonably practicable in the context of Catholic Healthcare’s operations.
• The Improvement Notice was therefore invalid and set aside.

PRACTICAL IMPLICATIONS FOR BUSINESSES

This decision reinforces several important principles for businesses managing WHS obligations:

THE IMPORTANCE OF CONTEXT IN WHS COMPLIANCE

To comply with the duties arising under section 19 of the WHS Act (uniform across all states), businesses are required to ensure health and safety “so far as is reasonably practicable”. This involves a multifactorial assessment, including:

•  The likelihood and severity of the risk;
•  Any existing control measures that are in place; and
•  The cost and feasibility of implementing any additional controls.

IMPROVEMENT NOTICES MUST BE GROUNDED IN A “REASONABLE BELIEF”

Inspectors for SafeWork authorities must possess the requisite “reasonable belief” that a contravention is occurring in order to validly issue an Improvement Notice.

This belief must be supported by facts and consideration of the specific circumstances of each business on a case-by-case basis, not just general guidance or assumptions.

DOCUMENTATION & RISK ASSESSMENTS ARE CRUCIAL

The detailed infection control protocols and documented risk assessments were central to Catholic Healthcare’s successful challenge of SafeWork NSW’s Improvement Notice.

Businesses should maintain comprehensive records of WHS measures and conduct regular reviews against evolving risks and guidance.

RECOMMENDATIONS FOR EMPLOYERS

To maintain compliance with duties and obligations in accordance with the WHS Act and Regulations, it is crucial for employers to:

• Review WHS protocols to ensure they are tailored to the unique challenges and risks of each individual business;
• Conduct and document risk assessments that consider the practicality and effectiveness of control measures, including whether any “reasonably practicable” additional measures could be implemented;
• Engage with SafeWork inspectors proactively, and provide comprehensive evidence of WHS compliance and contextual factors; and
• Seek legal advice at the earliest opportunity when issued with a WHS Notice that may not reflect your operational realities.

This article has been authored by the Finlaysons Employment and Work Safety team: Lachlan McCauley, Lawyer; Daniella Carling, Senior Associate; Jessie Murphy-Allen, Special Counsel and Guy Biddle, Partner. 

Our team can assist with preparing WHS protocols, reviewing correspondence with WHS authorities, prepare responses in relation to WHS notices, and manage operational considerations to reduce legal risk.

Please don’t hesitate to contact us for tailored advice.