Rail, Tram & Bus Union NSW Branch v Transport Workers’ Union of New South Wales [2020] NSWIRComm 1081

Industrial Relations Commission New South Wales Medium Neutral Citation: Rail, Tram & Bus Union NSW Branch v Transport Workers' Union of New South Wales [2020] NSWIRComm 1081 Hearing dates: Determined on the papers Date of orders: 27 November 2020 Decision date: 27 November 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Appeal upheld Catchwords: APPEAL – addition of industrial party to party card – procedural fairness Legislation Cited: Industrial Relations Act 1996 (NSW) Industrial Relations Commission Rules 2009 Cases Cited: Paula Lee v Energy Australia (No 4) [2011] IRComm 120 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Kioa v West (1985) 159 CLR 550 Stead v State Government Insurance Commission (1986) 161 CLR 141 F.A.I. Insurances Ltd v Winneke (1982) 151 CLR 376 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 Category: Principal judgment Parties: Rail, Tram & Bus Union NSW Branch (appellant)

Transport Workers' Union of New south Wales (applicant/respondent to the appeal) Representation: Mr T Warnes of the appellant

Mr G Webb of the applicant/respondent to the appeal File Number(s): 2020/160434 Publication restriction: Nil

Judgment 1. Before the Commission is an appeal by the Rail, Tram & Bus Union of NSW Branch (the appellant) against a decision of the Industrial Registrar made on 15 May 2020 to add the Transport Workers' Union of NSW (the applicant) to the party card for the State Transit Authority Bus Operations Enterprise (State) Award 2018 (the Award) under s 194 of the Industrial Relations Act 1996 (NSW) (the Act). 2. The background to this matter is as follows. On 15 April 2020, the applicant filed an application with the Commission to be added to the party card of the Award. 3. There is some contention as to when the appellant was served with the application. The applicant says that the appellant received the application by way of registered post on 8 May 2020. The appellant claims that the application was not in fact received until 13 May 2020. 4. The appellant did not receive any notification of a hearing before the Commission with respect to the application, nor was it notified that the matter was being considered by the Commission. 5. On 13 May 2020, the Office of the Industrial Registrar corresponded with the applicant to the effect that the Industrial Registrar required proof of service on all respondents indicated on the application. On 13 May 2020, the applicant responded to that request stating: "please see attached copies of correspondence dated 6 Mary (sic) 2020 to the other parties in this matter which served the TWU's Application dated 17 April 2020. Can you please confirm that this satisfies the Registrar. If an Affidavit of Service is required, please advise and I can provide one, it has just been difficult to have this witnessed with many people working from home." 1. On 15 May 2020, the Industrial Registrar issued orders granting the application joining the applicant to the party card of the Award (the Decision). The Decision is in the following terms: "1. Registrar grants the application of the Transport Workers' Union of New South Wales to be added to the party card for the specified award. 2. I am satisfied a sufficient interest has been displayed. 3. Industrial Registry to update party card. 4. Registry to notify parties." 1. On 19 May 2020, a Notice of Appearance was filed on behalf of the State Transit Authority Group of the Transport Service of New South Wales (the STA). 2. On 21 May 2020, the STA wrote to the Office of the Industrial Registrar, relevantly stating: "My understanding from the telephone conversation was that this matter has been closed following a decision made by the Registrar on the previous Friday to approve the Applicant's application. I note that the Respondent did not receive a copy of the relevant documents until 12 May 2020 (enclosed). The documents that were served on the Respondent did not appear to be a Service Copy and contained an incorrect matter number. The documents also did not provide any filing requirements, with an exception that Notice Of (sic) Appearance must be filed and served within 7 days, which the Respondent attempted to do via my email on 19 May 2020. These factors lead to the Respondent not having an opportunity to put forward submissions for the Commission's consideration, before the matter was decided and closed. I would like to request a copy of the outcome, and information on a process to have the matter open." 1. On 26 May 2020, the applicant enquired about the status of the application and was informed by the Industrial Registrar that it had been approved on 15 May 2020. 2. On 29 May 2020, the appellant filed an appeal against the Decision. The parties agreed that the Commission consider this appeal based on the written submissions of the parties to the appeal without a hearing. 3. The appellant claims that it was denied procedural fairness in the Decision, by the Industrial Registrar: 1. failing to notify the parties to the Award of the pending determination of the application; 2. failing to enquire as to whether the application had been properly served on the parties to the Award; and 3. thereby denying the parties to the Award the opportunity to be heard on the application. 1. I have decided for the reasons contained in this judgement to quash the Decision and remit the matter to the Industrial Registrar for reconsideration.