In the case of Catholic Healthcare Limited v SafeWork NSW [2025] NSWIRComm 1046, the Industrial Relations Commission set aside an improvement notice issued to an aged care operator on the basis of a mistaken interpretation of the application of the Work Health and Safety Regulation 2017 to its operations.
Need to know
- A SafeWork NSW Inspector issued an improvement notice to Catholic Healthcare alleging a contravention of its duty of care and statutory obligation to workers of its aged care facilities to fit test respiratory equipment.
- Catholic Healthcare applied for an internal review of the Notice, and ultimately an external review by the Industrial Relations Commission.
- Commissioner McDonald set aside the Notice, finding that the relevant clause of the WHS Regulation did not apply to Catholic Healthcare’s operations.
- The improvement notice had relied on the PPE provisions of the WHS Regulation. However, those provisions are only enlivened where the risk controls required by a risk assessment specify that PPE be used as a control. The Inspector mistakenly operated under the assumption that those risk assessment obligations apply generally. But, of course, they do not.
Background to the case
Catholic Healthcare Limited (Catholic Healthcare) operates 29 residential aged care facilities in NSW, including St Anne’s Aged Care (St Anne’s) at Hunters Hill in Sydney. As part of its infection control processes across all of its facilities, it required workers to wear respirators.
On 22 February 2023, a SafeWork NSW Inspector (Inspector) attended St Anne’s and recommended that the respirators were fit tested with the workers who were required to use them. Catholic Healthcare did not follow the recommendation in requiring fit testing to be conducted, rather, it employed a fit checking process. Unlike fit testing, which assists the user to determine which size and style of the respirator best suits their face, fit checking is a visual check which determines whether the respirator is comfortable to wear and whether there is any air leakage.
On 17 July 2024, the Inspector issued an improvement notice (the Notice) to Catholic Healthcare, alleging it had breached its duty of care as well as clause 44 of the Work Health and Safety Regulation 2017 (WHS Regulation). Specifically, sub-clause 44 (3)(ii) requires that a person conducting a business or undertaking who directs the carrying out of work must ensure that personal protective equipment (PPE) provided is a suitable size and fit and reasonably comfortable for the worker who is to use or wear it.
The Notice stated that because Catholic Healthcare had failed to ensure that respiratory protective equipment (including respirators) was of a suitable size and fit, workers may be exposed to a risk to their health and safety from potential inhalation of airborne contaminants such as COVID-19 and other respiratory illnesses in the workplace.
The Notice required Catholic Healthcare to ensure that respirators were fit tested and reasonably comfortable for the wearer or user.
Catholic Healthcare challenges the Notice
Catholic Healthcare applied for an internal review of the Notice, on the basis that:
- the Inspector did not have a reasonable belief that Catholic Healthcare was contravening the Work Health and Safety Act 2011 (WHS Act) or WHS Regulation. More specifically, Catholic Healthcare asserted that clause 44 of the WHS Regulation did not apply to its operations, so there could be no contravention of that clause.
- Catholic Healthcare had taken other control measures including extensive, documented infection control processes, steps to ensure respirators were of suitable fit and size (including providing at least five different sizes), and performing risk assessments.
The internal decision-maker held that Catholic Healthcare had a “rigorous process [to ensure workers’ safety in respect of airborne contaminants] which includes Fit Checks”. However, she determined only to make a minor variation to the Notice.
On 29 August 2024, Catholic Healthcare applied to the Industrial Relations Commission for an external review of the internal review decision and was granted a stay of the decision pending the external review.
External review
On external review, Commissioner Janet McDonald (Commissioner McDonald) determined that the Notice should be set aside on two bases, namely:
- The Inspector did not hold a reasonable belief that Catholic Healthcare contravened section 19 of the WHS Act (which sets out the primary duty of care of a business to its workers in respect of health and safety); and
- Clause 44 of the WHS Regulation did not apply to Catholic Healthcare’s operations.
Commissioner McDonald’s findings
Clause 44 of the WHS Regulation only applies where PPE is used to minimise a health and safety risk in accordance with clause 36 of the WHS Regulation.
Commissioner McDonald held that the Inspector lacked a reasonable belief that Catholic Healthcare had contravened section 19 of the WHS Act, as he had failed to consider or turn his mind to whether fit testing was reasonably practicable within the meanings of sections 18 and 19 of the WHS Act.
Section 18 of the WHS Act defines ‘reasonably practicable’, as what could reasonably be done at a given time to ensure health and safety, taking into account all relevant factors.
The Inspector focused solely on clause 44, which involved considering whether Catholic Healthcare required fit testing of masks. However, the Inspector did not assess the specific circumstances of Catholic Healthcare and consider whether the protective measure was reasonably practicable. The Inspector only considered that section 19 had been breached because Catholic Healthcare had “failed to ensure that workers have been fit tested under clause 44”.
Final decision
Commissioner McDonald held that for the Inspector to reasonably believe that Catholic Healthcare was contravening section 19 of the WHS Act, the Inspector had to give genuine consideration to the particular circumstances of Catholic Healthcare (and its facilities) to determine whether fit testing was a ‘reasonably practicable’ measure to minimise the risk posed by airborne contaminants. The Inspector did not do this.
Commissioner McDonald further noted that a reasonable belief under section 19 would require consideration of cost, particularly where Catholic Healthcare had expressly raised this as an issue. The Inspector confirmed that he did not ask Catholic Healthcare for any information in that regard.
Commissioner McDonald held that the Inspector had a reasonable basis to believe that Catholic Healthcare was required to comply with clause 44 of the WHS Regulation. However, since clause 44 did not apply to Catholic Healthcare in the circumstances, and neither were the requirements to establish a breach of section 19 of WHS Act met, the Notice must be set aside.
Considerations for employers
- Be clear about which provisions of the WHS Act and WHS Regulation apply to your operations. Seek advice if you are unsure.
- Evaluate whether risk controls (such as PPE fit testing) are reasonably practicable in your context. This involves considering technical feasibility, cost and workplace-specific circumstances.
- If you are issued with a Notice, verify whether the regulator’s assumptions are correct. It may be legally contestable if it is based on incorrect assumptions or a lack of reasonable belief.
Get in touch
By understanding the nuances of compliance obligations and ensuring businesses focus on WHS-specific operations, similar situations to the Catholic Healthcare case can be avoided. For more information or for tailored advice, please contact Michael Tooma.
