The Supreme Court of Victoria has determined that where a notice is served on a duty holder under section 9 of the Occupational Health and Safety Act 2004 (Vic) a party must comply with it, or actively challenge it. It is not sufficient to ignore the notice on the basis of legal advice to the effect that a notice may be invalid.
Facts
In December 2011, a truck driver was seriously injured when a fully loaded concrete agitator he was driving tipped onto its side at a bend in the road. The vehicle was owned by Aurora Construction Materials Pty Ltd (Aurora) and the driver was employed by Epping Transport Pty Ltd (Epping).
A police report generated on the day of the accident stated the driver may have been travelling too fast and that the vehicle had tipped over "whilst negotiating the bend in the road". The driver was seriously and permanently injured in the incident.
WorkSafe was notified of the incident and in early 2012 they were asked by the driver's legal representatives to conduct an investigation. The driver's lawyers alleged that Mr Perito's brakes failed immediately prior to the accident and that:
- Aurora was on notice of the defective braking system; and
- There was a general failure to maintain and service the vehicle.
WorkSafe was reportedly shown service records of the trucks during its 2012 investigation, and took no further action, having observed that the brakes of the vehicle concerned had been serviced by a competent person.
Under section 132 of the Occupational Health and Safety Act 2004 (Act), WorkSafe has two years in which to prosecute a duty holder for an indictable offence, following which the authorisation of the Director of Public Prosecutions must be obtained to commence a proceeding for an offence under the Act.
In June 2014, the driver's lawyer again wrote to WorkSafe, requesting that a prosecution be brought under s 131(1) of the Act. A comprehensive investigation was commenced in July 2014.
Notices under section 9 of the Act (Notices) were served on the companies on 23 September 2014, requesting additional information and documents relating to the incident. Paragraph 1 of the Notices stated that WorkSafe is conducting an investigation arising from the incident in which the driver "sustained serious injuries when the Concrete Agitator he was operating failed to brake".
The companies' solicitor formed the view that WorkSafe's coercive investigative powers under the Act had expired as the power to prosecute had expired. In correspondence exchanged and a meeting between the lawyer and WorkSafe, WorkSafe asserted its position that the investigation was mandatory under s 131 of the Act.
The lawyer wrote to WorkSafe in October 2014 summarising the companies' position that WorkSafe did not have an obligation to re-investigate the matter under s 131 and that the statutory limitation period had expired.
Charges
On 23 February 2015, charges under s 9(2) of the Act were filed against the companies. Section 9(2) creates an offence for a person, without reasonable excuse, to refuse or fail to provide WorkSafe with documents or information. The documents concerned in the charge were consignment dockets relating to the truck. It was asserted by those acting for the driver that he had written on the dockets that he had noted issues with the brakes of the truck.
Proceedings before the Magistrates' Court
The companies argued before the Magistrates' Court that the section 9 Notices were invalid as they did not specify the matter that constituted or might constitute a contravention of the Act or regulations, so as to enable them to discern the information or documents required to be provided. Merely stating that the truck "failed to brake" was, it was said, not to allege a contravention. WorkSafe denied there was any requirement that the Notices identify the provisions the subject of suspected contraventions, as the power in section 9 was intended to be used in investigations (possibly prior to a specific contravention being identified).
The companies also submitted that WorkSafe failed to prove that the companies did not have a reasonable excuse for non-compliance with the Notices. The companies asserted, as they had relied upon legal advice in declining to provide the relevant information and had voiced their legal contentions in writing to WorkSafe, they had a lawful excuse. WorkSafe submitted, among other things, that it would make a mockery of the law. If an accused's lawyer's advice was correct, then the accused would not have to comply with the notice for invalidity. If the lawyer's advice was wrong, they would still not have to comply, because of a reasonable excuse based on the acceptance of that advice.
The Magistrate found that the Notices were valid and rejected the argument they were deficient in their particulars, or that the companies had a reasonable excuse. The offences were found proved.
Appeal to Supreme Court
The companies appealed to the Supreme Court, repeating their contentions that the Notices were invalid and arguing that the Magistrate wrongly held that WorkSafe had proved the companies did not have a reasonable excuse for not complying with the Notices.
Justice Ginnane dismissed the appeal, finding that:
- Section 9 of the Act does not require WorkSafe to do more than describe the facts on which its suspicion of contraventions of the Act or regulations are based. It was sufficient to state that the vehicle "failed to brake";
- The Notices should not be read as a whole and not in an overly technical or hypercritical manner;
- The companies did not commence a legal challenge to the Notices despite WorkSafe making clear that it regarded the Notices as valid;
- The legal advice on which the companies acted was incorrect and it was open to the Magistrate to find that the companies' reliance on it did not constitute a reasonable excuse; and
- The investigative powers of WorkSafe would be severely restricted if incorrect legal advice could provide a reasonable excuse for non-compliance with a section 9 notice.
The decision is the subject of an appeal to the Court of Appeal.
Lessons
The power to issue a notice under section 9 of the Act is potentially very wide, such that a notice must only describe the workplace incident being investigated, not the specific provisions of the Act alleged to have been contravened. Identifying specific contraventions will be one of the tasks of the investigation itself.
A duty holder can also be forced to comply with a coercive notice, even if the presumptive two-year window for prosecution under section 132 of the Act has expired.
Finally, the case suggests that reliance on legal advice will not constitute a 'reasonable excuse' for failing to comply with Notices under s 9(2) of the Act. Duty holders are expected to either comply with such notices or to actively challenge them if they consider that a notice is defective.
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