By Michael Selinger

An employer who chose not to comply with a ‘Notice to Produce’ document issued by a safety regulator in Victoria has lost their final appeal to overturn a $25,000 fine.

In a recent decision handed down by the Victorian Court of Appeal, the Court rejected the employer’s argument that the statutory notice it was issued pursuant to section 9(1) of the Occupational Health and Safety Act 2004 (Vic) (the Act) was invalid, with the Court finding that the notice did not need to specify the provision or provisions of the Act that the employer was suspected of having breached.

Background

The employer (the applicants) was issued with a notice seeking information and asking it to produce documents about a road accident that had ultimately resulted in an employee being seriously injured and made paraplegic.

The request was made for the purpose of investigating a suspected (though undisclosed) contravention of the Act in relation to that accident.

As a precursor to the request for information and documents, the Victorian WorkCover Authority (the Authority) had provided the following details to the applicants:

“The Victorian WorkCover Authority is conducting an investigation arising from a workplace incident that occurred on Bulla Road, Bulla, Victoria on 5 December 2011. In that incident [the driver] sustained serious injuries when the Kenworth (2008) T350 Concrete Agitator he was operating failed to brake (the Incident)” (Notice).

The applicants argued that the Notice was invalid because, among other things, it did not disclose the provision or provisions of the Act that they were ‘suspected’ of having contravened, so what information and documents did they need to produce?

They argued that in the absence of sufficient clarity and detail, they were effectively being asked to ‘self-incriminate’ themselves in circumstances where they could face both prosecution and, potentially, a significant fine.

The applicants argued that the detail provided in the Notice was insufficient to enable them to make a proper assessment as to whether they were, in fact, obliged to comply with the Notice.

In response, the Authority countered that the Notice was issued validly and in accordance with the requirements of section 9 of the Act. The Authority pointed out that section 9 did not contain any express requirement that the particular provision that was suspected of being contravened be specified, nor did it contain any other requirement as to the content to be included in the Notice.

This, the Authority noted, could be distinguished from other sections of the Act including, for example, section 111.

In addition, and contrary to the argument as put by the applicants, the Authority’s position was that the Notice did contain facts sufficient to establish the Authority’s entitlement to issue the Notice, and to validly require the information and/or documents from the applicants. In particular, they noted that the Notice had identified:

• that there had been a ‘workplace incident’;
• where the incident had occurred and when (i.e. Bulla Road, Bulla, Victoria on 5 December 2011);
• the consequence of the incident (i.e. that the driver had sustained serious injuries); and
• how, in the immediate sense, those injuries had occurred (namely, that the brakes of the truck he was operating had failed to operate properly).

Accordingly, the Authority’s position was that the Notice had been validly issued and that the applicants were therefore legally required to comply with the Notice.

The decision

At first instance, the employer was fined $25,000 and ordered to pay costs of $15,943 for failing to comply with the Notice. The employer then unsuccessfully appealed to a single judge in the Supreme Court where the court held it did not have a reasonable excuse for failing to comply with the Notice.

Finally, the Court of Appeal rejected the employer’s last avenue of appeal and found in favour of the Authority by finding the Notice was valid.

The Court held that despite being ‘economic’ in the level of detail it had provided to the applicants, the Authority had:

• identified the incident being investigated; and
• had disclosed how it considered the incident to have been caused, being the failure of the truck to brake when it ought to have.

This meant that sufficient detail had been provided to indicate the basis upon which the Notice had been issued, and that the Notice was valid.

In reaching that conclusion, the Court made the point that if the Notice had have specified the particular provision that was suspected of having been contravened by the Applicants (as the company had sought) this would have added little, if anything, to the information already conveyed in the Notice.

Relevantly, that provision was section 21(1) of the Act, which broadly required the employer, so far as is reasonably practicable, to ‘provide and maintain a working environment for its employees that is safe and without risks to health’. The Court found that such a specification was neither necessary, nor required by the express words of section 9(1).

Lessons for employers

In the absence of any ambiguity, the meaning of a statutory provision will be its ‘ordinary meaning’ and the validity of any notice ‘should not be addressed in an ‘over-technical or hyper-critical manner’.

In the case of section 9(1) of the Act, the Authority is not required to identify with any specificity, or at all, the particular section of the Act that a company or individual is ‘suspected’ to have contravened.

However, the Authority must still provide enough detail to enable the recipient to identify what, in general terms, the ‘suspected contravention’ is. This is something that may be achieved by identifying relevant, albeit ‘economical’, facts.

If you receive a Notice and have concerns in respect to its validity, take action. Always ensure that a response is provided to the Authority within the timeframe specified in the notice and consider your appeal rights.

Application outside of Victoria

Finally, while this case does relate to a provision of the Victorian OHS Act, it is also relevant to employers operating in harmonised work health and safety jurisdictions across Australia.

By way of example, section 155 of the Work Health and Safety Act 2011 (NSW) (being the analogous provision to section 9(1) of the OHS Act) allows a regulator to issue a Notice where they have ‘reasonable grounds to believe’ that a person is capable of providing information and/or documents in relation to a ‘possible contravention of the Act’.

There is no express requirement in section 155 for the possible contravention to be identified by reference to the specific provision or provisions of the Act.