Telstra Corporation Ltd v Smith [2009] FCAFC 103 (Decision on appeal - Procedural aspects of investigations and requirements of reports of investigation pursuant to the OHS Act)
Issue
Telstra appealed the decision of Justice Middleton at first instance. In those proceedings Telstra sought to quash the investigation report attacking it on four separate grounds:
- the pit and pit lid were not a “workplace” at the time Mrs Kirtley and her baby fell into the pit because no work was being performed in the pit at that time;
- the production of the report of investigation involved a denial of procedural fairness to Telstra;
- the investigator failed to comply with s53(2) of the OHS Act by failing to include reasons for his conclusions; and
- the investigator was not empowered by the OHS Act to conclude Telstra had breached s17 in his report.
At first instance Justice Middleton rejected all four arguments. Telstra appealed that decision to the Full Bench of the Federal Court.
Outcome
Unanimous judgment of Spender, Lander and Flick JJ:
- Appeal dismissed.
- Telstra ordered to pay Comcare’s costs.
Ground One—was the pit and pit lid a “workplace” as defined in s5?
The Full Bench rejected Telstra’s argument that there must be a temporal connection between a place or premises and the doing of work before it can be a “workplace” for the purposes of the OHS Act. The Court considered such a construction would frustrate the intention and purpose of the OHS Act, particularly that underlying s17 of the OHS Act which is to protect third parties at or near workplaces.
The Court held that a “workplace” for the purposes of the Act is a place where work is performed from time to time, and the pit did not cease to be a workplace during those periods of time when no work was being performed in them.
Ground Two— was there a denial of procedural fairness?
The Court set out a test of procedural fairness in investigations conducted under the OHS Act, which required:
- a reasonable opportunity [for a duty holder subject of an investigation] to make submissions and present material to the investigator prior to the preparation of a report of investigation required by s53 of the OHS Act; and
- an obligation on the investigator to inform the employer, or anyone else who might be adversely affected by the findings or conclusions in the report about the nature of the investigation, and the issues which arise in it, unless those matters are inherent in the nature of the task itself.
The Court held that the investigator had discharged these obligations.
Ground Three— does the OHS Act contemplate investigators making findings that duty-holders have breached the OHS Act?
The Full Bench rejected Telstra’s argument that the OHS Act does not empower investigators to make findings that duty-holders have breached the OHS Act in their reports of investigation. The Court held that ss41 and 53 of the OHS Act specifically contemplate that investigators must reach conclusions about compliance or non-compliance in their reports.
Grounds Four to Six— requirements for conclusions and supporting reasons in reports of investigation
The Court held that the investigator had set out findings on materials questions of fact and referred to the evidence or other material on which those findings were based and that rationally supported the conclusions reached, as was required.
A copy of the decision is available at: http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/103.html.