This case will be of interest to paramedic and nursing students. InUniversity of the Sunshine Coast v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 298 (24 June 2022) the university challenged an improvement notice issued by the Work Health and Safety regulator.

Queensland Ambulance Service (QAS) and Queensland Health advised the University that paramedicine and nursing students had to provide evidence of fit testing for N95 face masks in order to undertake a placement with QAS. The University arranged for fit testing. The fit testing cost each student $65.

The Work Health and Safety Act 2011 (Qld) s 273 says

A person conducting a business or undertaking must not impose a levy or charge on a worker, or permit a levy or charge to be imposed on a worker, for anything done, or provided, in relation to work health and safety.

The regulator took the view that the University was in breach of s 273. Rather than prosecute the Inspector issued an improvement notice requiring the University to comply with the Act as he understood it.  The University sought an internal review, and this review affirmed the Inspector’s decision. The University then appealed to the Queensland Industrial Relations Commission. Pending the outcome of the final appeal the University asked the Commission to ‘stay’ the improvement notice, ie to put it on hold so that they did not have to comply until after the case was finally heard.

In deciding whether the grant the stay the Commission had to consider, amongst other things, whether the University had what appeared to be an ‘arguable case’ (see [10]). The University argued (at [22]) that:

The requirement for the students to be fit tested for respiratory masks to go on clinical placements is a requirement of the placement providers which are PCBUs [ie the Person Conducting the Business or Undertaking] in their own right. It is not a requirement of the Applicant [University].

The Applicant’s role is to facilitate the fit testing occurring to assist both the students and the placement providers. The Applicant is effectively a conduit for the payment of funds to the organisation conducting the fit testing.

At [67] Deputy President Merrell said:

On the evidence presently before me, the relevant students are not carrying out any work for the University. When the students are undertaking clinical placement, they are, for example, carrying out work for or under the direction of the Department or a Hospital and Health Service. There is no evidence that when the relevant students are undertaking a clinical placement, they are directed in the day to day work they perform in such a clinical placement by the University.

The real question, in my mind, is whether or not, on the proper construction of s 273 of the Act, the prohibition against a person conducting a business or undertaking imposing a levy or charge on a worker for anything done or provided in relation to work health and safety, contemplates that the worker must be carrying out work for the person conducting the business or undertaking. The resolution of this question requires a consideration of the proper construction of s 273 of the Act.

And at [72]:

…  my preliminary view is that the University has an arguable case that Inspector Roberts could not have reasonably believed it was contravening s 273 of the Act on the basis that, properly construed, s 273 imposes the prohibition – not to impose a levy or charge on a worker – on a person conducting a business or undertaking, where the worker is performing work for the business or undertaking.

Deputy President Merrell determined that given the University’s ‘case may well be a strong one’ ([80]) the balance of convenience was in favour of granting the stay.

The outcome is that the University can continue its practice of charging students $65 pending until the Commission makes a final determination on the appeal against the improvement notice.

Conclusion

This case is of interest for the argument it raises. As Commissioner Merrell said (at [53]) ‘it cannot be in dispute that the University is a person conducting a business or undertaking’ and that it has work health and safety duties to its students whilst they are on campus but the issue is ‘who is the PCBU for nursing and paramedic students when they are on placement?’

That issue is not yet resolved but the Commission was satisfied that there was a ‘strong’ argument that the relevant PCBU is the clinical placement providers. If that is the final outcome it may have interesting implications for both Universities and clinical placement providers so we will look with interest for a final decision in this matter.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.