NATURE OF THE APPEAL:
Director’s Decision to Vary a Stop Work Order.
BACKGROUND:
In November 2018, our client filed a request for Director review of a Stop Work Order that had been issued by OH&S in the course of its investigation into an incident involving a worker from another contractor. Although our client was neither the prime contractor for the site, nor a contractor in control of the work process or procedures, the Stop Work Order stated that, in the opinion of the Officer, a continuing danger existed with respect to work at heights, and that our client was “required to ensure that workers conducting construction duties at a height greater than 3m, [were] appropriately protected from falling and to take measures necessary to protect workers”.
In April 2021, almost 29 months after the Stop Work Order was issued (and complied), the Director issued written reasons varying the Stop Work Order (the “Decision”). The Decision to vary, as opposed to rescind, was arrived notwithstanding the Director’s specific acknowledgement that the Order did not provide sufficient clarity of instruction for our client to comply with the remedies the OH&S Officer deemed appropriate, and at least one identified instance of non-compliance with the legislative requirements necessary for the issuance of such an Order in the first place.
GROUNDS OF THE APPEAL:
While the particulars are extensive, our client advanced an appeal to the Labour Relations Board on the basis that, in the course of arriving at the Decision, the Director:
(a) failed to exercise (or to properly exercise) its jurisdiction and/or discretion;
(b) acted outside of its jurisdiction and/or legal authority;
(c) failed to interpret and/or misinterpreted the enabling legislation;
(d) engaged in an abuse of process;
(e) failed to act impartially;
(f) acted unreasonably in the course of one or more of the above instances; and/or
(g) breached its duty to be fair to the Appellant.
RESULT OF THE REQUEST FOR REVIEW / APPEAL:
After reviewing the Grounds of Appeal and our arguments in respect of same, the Director conceded the Appeal, and rescinded the Order. No reasons were provided. No doubt, because when the devil is in the details, and those details are at risk of becoming public, it’s easier not to elaborate.