Elgas Limited v SafeWork NSW (No 2) [2021] NSWIRComm 1102

Elgas Limited v SafeWork NSW (No 2) [2021] NSWIRComm 1102

There is a serious question to be tried as to whether the option chosen by the inspector for the composition of workgroups at the Elgas Cavern facility was appropriate, and the balance of convenience favours granting a stay as current health and safety arrangements are sufficient, a delay will not adversely impact safety, and SafeWork NSW does not oppose the stay.

Parties
Applicant: Elgas Limited; Respondent: SafeWork NSW
Jurisdiction
Australia
Judgment Date
20 December 2021
Procedural Posture
Application for Interlocutory Orders (stay) / Interlocutory Decision on Stay Pending External Review
Outcome
Stay granted
Legal Topics
Work Health and Safety, External Review, Stay of Decision
Employment and Industrial Law Work Health and Safety External Review Stay of Decision

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Parties

Elgas Limited

Applicant

SafeWork NSW

Respondent

Procedural Posture

Application for Interlocutory Orders (stay) / Interlocutory Decision on Stay Pending External Review

Legal Issues

  1. 1 Whether there is a serious question to be tried as to the correctness of the inspector's decision regarding workgroups at the Elgas Cavern facility
  2. 2 Whether the balance of convenience favours granting a stay of the decisions under review pending the outcome of the external review application

Ratio Decidendi

There is a serious question to be tried as to whether the option chosen by the inspector for the composition of workgroups at the Elgas Cavern facility was appropriate, and the balance of convenience favours granting a stay as current health and safety arrangements are sufficient, a delay will not adversely impact safety, and SafeWork NSW does not oppose the stay.

Court Disposition

Stay granted

Orders

  • The operation of the decision by Daniel Leo, SafeWork NSW Inspector, dated 23 September 2021 be stayed in accordance with s 229(3) of the Work Health and Safety Act 2011 (NSW) pending the outcome of the application for external review filed on 11 November 2021.
  • The operation of the internal review determination made by Rod Kammel, Reviewable Decisions Coordinator of SafeWork NSW, dated 28 October 2021 be stayed in accordance with s 229(3) of the Work Health and Safety Act 2011 (NSW) pending the outcome of the application for external review filed on 11 November 2021.