I have previously reported on health and safety representatives within the emergency services (in particular a member from Fire Rescue NSW and another from the NSW Rural Fire Service) serving provisional improvement notices on their service and some of the law that applies to them, see:

Today we turn to Victoria and a dispute between Ambulance Victoria and one of its health and safety representatives in Jongebloed v Victorian Workcover Authority (Review and Regulation) [2024] VCAT 978.  Mr Jongebloed is a paramedic and a designated health and safety representative (HSR) for Ambulance Victoria’s work group based in Woodend.  On 15 October 2023 he issued a ‘Provisional Improvement Notice’ (PIN) to Ambulance Victoria (AV) over the ambulance service’s alleged failure to ‘to act on misrouting of 000 calls in border towns for 13 months placing members of the public at risk of harm or death’ ([1]).  The issue was brought to Mr Jongebloed’s attention by a colleague in the Ballarat State Emergency Control Centre and followed attempts to work with AV on the issue and a complaint to WorkSafe Victoria ([2]).

Following the issue of the PIN, AV applied to WorkSafe for a review. WorkSafe cancelled the PIN and an internal review confirmed that decision ([4]). Mr Jongebloed applied to the Victorian Civil and Administrative Tribunal (VCAT) for an external review of the WorkSafe decision ([5]) and WorkSafe sought to have that application struck out on the basis that it was ‘…misconceived or lacking in substance’ ([8] and [10]).  It was this application that was determined in this judgment.

AV argued that the application should be dismissed because the issue, involving the misrouting of 000 calls, had been resolved. Senior Member Tang said (at [15]-[17]):

… it does not necessarily follow that, because the Misrouting Issue giving rise to the PIN has been resolved, the I[nternal] R[eview] Decision to cancel the PIN is the correct or preferable decision when assessed today.

In this regard, [the Act] … permits a PIN to be issued for a past contravention ‘in circumstances that make it likely that the contravention will continue or be repeated’.

It is possible that, after hearing evidence from the parties, the Tribunal would conclude that there is still work to be done by Ambulance Victoria and that the PIN should be affirmed, whether in its original form or with modifications.

AV also argued that Mr Jongebloed was not from the appropriate workgroup that is the issue should be dealt with by an HSR in the Control Centre or by a paramedic on the border.  Section 59 of the Occupational Health and Safety Act 2004 (Vic) (‘the Act’) says that an HSR may only exercise his or her powers with respect to their own workgroup unless:

…

(b) a member of another designated work group asks for the representative’s assistance—

and it is not feasible for the representative to refer the matter to a health and safety representative for the other designated work group.

A member from the Control Centre had asked for Mr Jongebloed’s assistance.  Whilst Mr Jongebloed’s written evidence did not address the question of whether or not it was feasible for him to have referred the matter to an HSR in the Control Centre Workgroup ‘that is a matter that he may be able to establish in due course’ ([18])  It would therefore be in appropriate to strike out his application to review the decision to set aside the PIN rather than let the matter proceed to a full hearing where that issue can be determined on the evidence available at that time.

The Tribunal said, at [19], that the real issue was whether Mr Jongebloed could issue a PIN where the alleged risk to health and safety was not a risk to fellow employees but to members of the public. Section 23(1) of the Act says:

An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

The problem is that s 60 says that an HSR can issue a PIN if they believe that a person is contravening, or has contravened, ‘a provision of this Act or the regulations’.  That is an unconstrained power; but s 59 says that an HSR may only exercise his or her powers ‘only in respect of matters that affect, or may affect, members of’ their own designated work group or members of another work group in circumstances described in s 59(b) and discussed, above.  There is also a power to act for the benefit of members in another work group in response to ‘an ‘immediate risk to health or safety that affects or may affect a member of another designated work group’, but not for an immediate risk to the health or safety of the public’ ([25] and s 59(a)].

Mr Jongebloed argued that one of the purposes of the Act was to protect members of the public and it was consistent with that purpose to allow him to issue a PIN in a ‘unique situation’ where the alleged failure by AV was putting members of the public at risk ([11(b)]).

The Tribunal held that the power to issue a PIN did not extend to s 23. AN HSR is appointed to protect the interests of fellow employees ([28]) and there are different provisions dealing with the identification of and managing risks to the public and people other than employees ([29] to [35]).

Senior Member Tang held that Mr Jongebloed, or any HSR, could not issue a PIN to deal with an issue that was alleged to be a breach of s 23 that is was exposing people other than employees to a risk to health and safety.  Because of that Mr Jongebloed’s application to review the decision by WorkSafe to set aside the PIN was ‘‘undoubtedly hopeless’ and ‘bound to fail’’ ([38]) and his application was dismissed.

Discussion

Victoria is the only state not to have adopted the model Work Health and Safety laws and continues to operate with the Occupational Health and Safety Act 2004 (Vic). The Model Work Health and Safety Act imposes obligations on a person conducting a business or undertaking with respect to ‘workers’ rather than employees (s 19(1)) but workers are still distinguished from ‘other persons’ (s 19(2)).  The Model Act at s 90 is in similar terms to s 60 of the Victorian Act, that is it allows an HSR to issue a PIN where they believe a person is contravening or has contravened a provision of the Act.  The Model Act, s 69 (like the Occupational Health and Safety Act 2004 (Vic) s 59) says:

(1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group.

(2) Subsection (1) does not apply if:

(a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group; or

(b) a member of another work group asks for the representative’s assistance,

and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable.

What follows is that even though Victoria has not adopted the Model Act the reasoning here is likely to apply in those jurisdictions that have adopted the Model Act, that is an HSR cannot issue a PIN to require the PCBU to take steps to deal with a situation that poses a risk to ‘other persons’ (as opposed to ‘workers’) who are put at risk by ‘the conduct of the business or undertaking’ (s 19(2)).

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.