JR: rejection of an enforceable undertaking following the death of a worker

Wilmar Sugar Pty Ltd v Blackwood [2017] QSC 180

 Douglas J

The application concerned a statutory order of review pursuant to the Judicial Review Act 1991 (Qld) of the respondent’s decision to reject an enforceable undertaking offered by the applicant following the death of a worker. Relevantly, s 216 of the Work Health and Safety Act 2011 (Qld) (“the Act”) permits the respondent to accept a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by a person of the Act.

Background

Douglas J summarised the circumstances leading to the respondent’s decision as follows:

[2] The circumstances in which the respondent’s decision came to be made stem from the death of a worker at a sugar mill recently acquired by the applicant. The death occurred within a year of the applicant buying the mill. It had spent approximately $5 million in improving operations at the mill since it bought it and went to considerable efforts to propose an enforceable undertaking instead of being criminally prosecuted for the death of the worker at the mill. An independent panel appointed by the respondent unanimously recommended that he accept the undertaking. He did not do so and this application seeks to challenge his reasons for failing to do so. The hearing of the criminal charge stemming from the death has been adjourned pending the disposition of this application.

Relevantly, the decision was challenged on the basis that:

  • The decision failed to take into account relevant considerations;
  • The decision involved an error of law; and
  • The decision failed to give proper reasons as required by s 217(2) of the Act

Failure to take into account relevant considerations

The applicant submitted that the respondent failed to take into account the applicant’s past performance in relation to work, heath and safety. Finding that the respondent did take into consideration the applicant’s past, his Honour stated:

[13] He did so in his reasons dated 18 July 2016 by finding that the applicant had no previous convictions and had not been prosecuted previously for a breach of the Act and that it had no concerning workplace health and safety compliance history before this matter; see paras 4.14 and 4.15 of his reasons…

[14] In his final reasons he said that he had had regard to the applicant’s submissions about its prior safety performance. In circumstances where there was no assertion to the contrary, it does not seem to me that it can be said that the respondent failed to take the applicant’s positive past performance and history of compliance into consideration. It is not correct, in my view, to characterise his reasoning as limiting his consideration of the applicant’s past performance and history of compliance to the absence of adverse matters while ignoring positive facts in the applicant’s favour.

Error of law – unreasonableness

As to the second ground of review, Douglas J referred to the respondent’s reasons at paragraph 4.18, which stated:

“I find it unacceptable that the nature of the alleged contravention is related to cane rail safety and that Wilmar is considered a leader within the sugar industry and have failed in their duty to ensure the safety of a worker.”

His Honour went on to state that:

[18] When one reads that passage in context it is the final paragraph of the respondent’s findings on material questions of fact. Over the previous 17 subparagraphs he made a number of findings related to the adequacy of the undertaking provided by the applicant and the objective gravity of the incident giving rise to the issue as required by the guidelines…

 

[19] He also accepted that all the panel members consulted by him recommended acceptance of the undertaking, found that the worker had sustained a fatal injury and that there were several deficiencies in relation to pedestrian access around the bin braking device.

[20] In that context it was submitted for the respondent that his use of the word “unacceptable” in para 4.18 was not one by which he applied a test of acceptability or unacceptability to certain facts so as to preclude acceptance of the undertaking. Rather it should be construed as a finding on the evidence that the applicant, as a leader within the sugar industry, where the nature of the alleged contravention was related to cane rail safety, had failed in its statutory duty to ensure the safety of a worker. Clearly, in any event, that would have been a very significant issue to assess in deciding whether or not to accept the undertaking.

[22] The conclusion he expressed in para 4.18 as a finding on material questions of fact was neither unreasonable in the sense that it warranted judicial review nor did it constitute an error of law as applying a test of acceptability or unacceptability to those facts. Rather, in my view, he was not applying a test of acceptability or unacceptability to those facts but was setting out his conclusions about the relevant evidence in such a way as to inform the decision he went on to make. He was not fettering the free exercise of his discretion.

Failure to give reasons

As to whether the respondent gave proper reasons, his Honour was satisfied that the respondent addressed comprehensively the reasons why the decision was reached. After considering relevant paragraphs of the decision, his Honour stated:

[25] Those reasons were criticised as failing to explain the actual process of reasoning by which the respondent in fact formed his opinion in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

[26] I reject that argument. The reasons were appropriately detailed and come to grips with the issues the respondent was required to consider. The respondent clearly took into account the recommendation by those he consulted to accept the undertaking in para 5.4 and para 5.9. Paragraphs 5.5 to 5.8 record the fact of the fatality and the number of serious risks that the system of work posed to the workers. Paragraphs 5.10 and 5.11 can only be seen as an explicit balancing exercise explaining why he decided to reject the undertaking and that the objects of the Act would be best served by rejecting the proposed undertaking and continuing the prosecution in spite of the advice offered to him.

[27] Those reasons were adequate to dispose of the issues that had been argued before him. In arriving at his conclusions he considered matters both favourable and unfavourable to the applicant’s position and articulated rationally why he reached the conclusion he did. I do not see this as a failure to give reasons nor as a failure to explain why he rejected the recommendation made to him.

The application was dismissed, costs to be heard.

 

David Cormack – Brisbane Barrister and Mediator

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