In Australia, safety inspectors can only issue an improvement notice - requiring a person to take positive steps to address an identified breach - if the inspector has a reasonable belief that there is a present contravention of work health and safety (WHS) law or, that the person has contravened WHS law in circumstances that make it likely that the contravention will continue or be repeated.

The NSW Industrial Relations Commission (Commission) was required to consider and determine if a SafeWork inspector genuinely had "reasonable belief" in Lipman Pty Ltd v SafeWork NSW [2021] NSWIRComm 1088 when a principal contractor appealed a refusal by SafeWork NSW to withdraw an improvement notice.

The Commission determined the SafeWork inspector did not have the necessary reasonable belief. Specifically, the Commission found that because the prohibition notice - issued by the same SafeWork inspector for the same incident - barred the principal contractor from engaging in the conduct contemplated under the improvement notice, the SafeWork inspector could not reasonably believe there was a risk of any further contraventions.

Why was an improvement notice issued?

Understanding the contracting arrangements on the Lipman worksite are crucial to this decision.

Lipman, a construction company, was the principal contractor responsible for constructing an aged care building in Liverpool, NSW.

As the building consisted of 11 floors, Lipman engaged Safemaster to install and certify a proprietary permanent fall arrest roof safety system for the construction site. This included anchor points for fall arrest purposes and a building façade access system to assist workers working on the exterior of the building.

Near the end of construction, the building required minor repairs and adjustments to the external façade, so Lipman subcontracted Benz Height Access Solutions (Benz) to provide rope access and specialist height access services. Tragically, a Benz worker fell from the level 8 balcony and was fatally injured. The deceased worker was suspected of using Safemaster's anchor points.

Following the fatal incident, SafeWork NSW inspected Lipman's construction site and issued Lipman with:

  1. an improvement notice requiring improved compliance for the site's fall arrest anchor points on level 8 (Improvement Notice)
  2. a prohibition notice preventing the use of all installed fall arrest or rope access anchor points across the site (Prohibition Notice).

Importantly, the Improvement Notice was issued because the inspector believed Lipman's suspected contravention of the WHS Act would continue or be repeated.

Lipman then unsuccessfully appealed the Improvement Notice to SafeWork NSW before applying to the NSW Industrial Commission for an external review.

Validity of an improvement notice

The Commission made it clear that for a "reasonable belief" to exist:

  1. the inspector must reasonably believe that Lipman contravened section 19 of the WHS Act
  2. the inspector must reasonably believe that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated.

The Commission determined that assessing if an inspector has a reasonable belief warranting an improvement notice is an objective test. Therefore, certain facts capable of inducing the state of mind of a reasonable person need to be in existence. In other words, there needs to be reasonable grounds for the reasonable belief to exist.

In this case, the SafeWork inspector issued the Improvement Notice on the basis the contravention, being the failure to ensure the health and safety of workers on-site, would continue or be repeated because the inspector observed:

  • anchor points, including a failed anchor point, and ropes were observed on level 8 of the building
  • the use of abseiling by attaching it to any of the anchor points presented a serious risk to the health and safety of workers
  • the presence of workers at the site
  • concern that abseiling work at the site would continue
  • Mr Benz's co-worker had been taken to Liverpool police station for questioning, but he and/or other workers were likely to return to the site and attempt to continue the façade work that Mr Benz had been conducting.

However, the Commission determined that no reasonable belief could exist because the inspector's observations overlooked the operation of the Prohibition Notice.

Specifically, the Prohibition Notice had the effect of "prohibiting the very conduct that gave rise to the 'concern' that a contravention of the WHS Act would continue or be repeated" by Lipman. The Prohibition Notice prevented Lipman from undertaking any work involving rope access works or the fall arrest roof safety system, being the risks that formed the basis of the contravention.

In other words, the Prohibition Notice removed any objective basis for the inspector to conclude the contravention would continue or be repeated. The Prohibition Notice would not be lifted until the inspector was satisfied that no ongoing risk of injury was present.

The Commission also noted that Lipman was cooperating with SafeWork NSW after the incident to create a safe worksite. Furthermore, the inspector's grounds for reasonable belief did not suggest there was any evidence demonstrating Lipman had a poor safety record, prior contraventions, or evidence of a previous record of non-compliance that would enable the inspector to form the required reasonable belief.

Considerations for businesses

This decision is a reminder that businesses can challenge improvement or prohibition notices if the notices are deficient or have been issued without proper grounds.

As improvement and prohibition notices can expose your business to penalties for non-compliance, businesses need to carefully review any notices and ensure they are valid.

For further reading, see our previous article on "reasonable belief" in the context of valid enforcement notices.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.