of manufacturer’s instructions or of the Australian Standards if there was no evidence that those alleged contraventions represented a risk to health and safety. At the end of the discourse Mr McCarthy conceded that the risk to health and safety arising from the contravention nominated by Mr was an inference drawn from the fact of the alleged contravention alone. He argued that the Australian Standards are of such authority that the non-compliance must point to a risk to health and safety. The Tribunal expressed the view that this was a ‘long bow’ to which Mr McCarthy responded “it is a question of degree.” On 21 September 2015 the applicant filed unsolicited further submissions on regulation 225(4). The applicant expressed concerns that the Tribunal may have misunderstood the nature and role of regulation 225(4). The concern was said to arise from the Tribunal’s question concerning whether any operation of regulation 225(4) was dependent on any ‘notice’ being served on a person. This issue has been addressed above. The short answer is that there is no explicit requirement for a notice under regulation 225(4) but it is implicit. Some form of notice must materialize from the inspection in order to trigger the rectification or repairs that regulation 225(4) speaks of. The person in control of the site cannot be expected to read the inspector’s mind. The applicant argued more fully that the outcome of the ‘inspection’ referred to in regulation 225(4) is the triggering mechanism and in particular there would need to be a finding indicating a risk to health and safety for this trigger to apply and not a mere with the AS or even a breach of a provision of the Act or Regulation that does not present a risk to health and safety. The applicant contended that regulation 225(4) was relevant only to the ordering of repairs, alterations and additions and was not capable of being breached until such an order was made and not complied with. It was contended by the applicant that these were not the facts of this case because Rovera had immediately complied with the notice. The respondent did not object to the unsolicited further submissions from the applicant. The respondent sought to file its own further submissions on
would probably still have formed the view that a contravention of the Australian Standards had occurred and issued the notice. The Tribunal has come to this view based on the importance that Mr Mason attached to the Acrow manual and to the Standards. Putting to one side the statutory issues, this view was open to Mr Mason on the evidence and the Tribunal does not find that it was an unreasonable position for him to have adopted. One concern the Tribunal has for the purpose of section 191(1) is with Mr assumption that a non-compliance with the Australian Standards or the Acrow manual necessarily gives rise to a risk to health and safety within the meaning of regulation 225(4). In the Tribunal’s view this is a non sequitur for the reason that a contravention may be minor and may be more than compensated by other safety features. Section 191(1) required Mr to form a reasonable belief that a contravention had occurred. To form that view he had to focus on one or more potential contraventions of the Act or Regulations and be satisfied that they had in fact occurred. He specifically focused on the one potential contravention, namely that of regulation 225(4); without specifically having indicated whether the non-compliances in question represented a risk to health and safety for the purposes of regulation 225(4). The respondent argued that Mr should be taken to have formed a negative view on the health and safety risk for the purposes of regulation 225(4) in that the risk to health and safety followed axiomatically from a non-compliance with the Acrow manual or from the Australian Standards. If Mr Mason did in fact think in this way, then his view was not a reasonable one. The Tribunal is however prepared to accept that Mr Mason formed his belief that there was a risk to health and safety to workers on the site as the result of seeing an incomplete scaffold and the obvious absence of bracing in several parts of the scaffold structure. It is not sufficient that there be just any level of risk to health and safety at all. Such would be the case for the most perfectly and complying structure. The Tribunal pressed the parties on the issue of the degree of risk