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. Relevant law and legal principles 1. Under s.194 of the Act, the appellant does not require leave to appeal the Decision. 2. Further, under s.194(5), the Commission may, in respect of an appeal: (a) confirm, quash or vary the decision concerned, (b) make a decision dealing with the subject-matter of the decision concerned, (c) direct the Industrial Registrar to take further action to deal with the subject-matter of the decision as directed by the Commission." 1. Rule 6.9 of the Industrial Relations Commission Rules 2009 (the Rules), provides for the maintenance of party cards by the Industrial Registrar in respect of industrial awards made by the Commission. It is in the following terms: "6.9 Party cards (1) In this rule: party means a person or an organisation that has an interest in an award, or in the making of an application in respect of an award, or that has otherwise participated in the making or variation of an award. party card means a register of parties, maintained by the Registrar, that have an interest in an award. (2) The Registrar must maintain a system of party cards. (3) Application for inclusion on the party cards may be made to the Registrar in the approved form. (4) The Commission may direct that a party be added to or removed from a party card in respect of a particular award or awards. (5) Parties to an award that are recorded on a party card must be served with any application concerning the award. (6) A party may be removed from a party card by the Commission, provided that the party has been given at least one month's written notice (to be been sent to the party's last known address) of the proposal to do so. (7) An application to remove a party from a party card in relation to an award may be made by any other party to the award." 1. Rule 6.9(3) allows an application to be made for inclusion onto a party card by a "party". To be a "party", an organisation must have an "interest" in the particular award. 2. Rule 6.9 (5) imposes an obligation upon a party making an application in respect of an award that they serve the parties to an award recorded on the party card. The wording of the rule is somewhat unclear in that on one reading, it only obliges an applicant making an application in respect of an award to inform named parties to the award (as contained on the party card) rather than any person or organisation contained on the party card. Such an interpretation would seem to circumvent the purpose of the party card, namely to ensure that persons with an interest in the award are informed when someone is making an application in respect of it. 3. Rule 6.9 (7) provides that "any other party to an award" may apply to remove a party from a party card. Accordingly, it is envisaged by the Rules that parties to an award on the party card be able to place argument before the Commission with respect to whether another party should or should not be listed on the party card to an award. 4. Section 163 of the Act provides for the "Rules of evidence and legal formality" as follows: "(1) The Commission— (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 1. In Paula Lee v Energy Australia (No 4) [2011] IRComm 120 at [160], the Full Bench of the Commission, after considering the relevant authorities, set out the following principles with respect to the manner in which the Commission is to conduct proceedings: "For the purposes of these proceedings, we derive from these authorities the following: 1. The resolution of a procedural question in arbitral (or other industrial proceedings involving the exercise of such a power or function) must be undertaken in a manner consistent with equity and good conscience (including the requirement to afford procedural fairness). In other words, the Commission is required to act in conformity with those requirements in the resolution of the procedural issue raised by this matter. 2. This requirement extends to matters which concern evidence or information that the tribunal may contemplate relying upon in reaching its decision. 3. The satisfaction of those requirements will require the Commission to make its evaluation of a subject procedural question based upon good sense and fairness and by searching for a just result. 4. Despite the informality of process dictated by s 163(1)(a) and (b), the tribunal may not simply adopt literally any procedure considered reasonable and fair in industrial proceedings. There can be no denial of the appellant's proposition that, even though the Commission is not bound by the rules of evidence, this does not result in the Commission being able to act without any evidence whatsoever. This has been stated as a principle from the earliest times of industrial arbitration. Thus, in Re Tramway Employees (Melbourne) Award 1949 (1951) 72 CAR 26 , Kelly CJ, Dumphey and Wright JJ observed that "if a tribunal were to so act, obvious injustices and insecurities would result" (at 27) (see, as applied by the Full Bench of the Industrial Relations Commission of South Australia in Re Clerks (South Australia) Award Casual Provisions Appeal Case [2001] SAIRComm 7; (2001) 107 IR 355) at [78]). 5. The Commission must act judicially: see Coal & Allied at [25]." 1. In Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30], the Court considered the obligation of administrative decision makers to observe procedural fairness principles: "It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions." 1. In Kioa v West (1985) 159 CLR 550, quoting Mason J in F.A.I. Insurances Ltd v Winneke (1982) 151 CLR 376, the High Court held (per Gibbs CJ at p 563) in relation to the requirement to afford procedural fairness: "The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power." 1. The applicant did not argue that the appellant was not entitled to object or be heard with respect to the application. In the circumstances, I can see no reason why the principles of procedural fairness should not apply in the context of decisions made pursuant to Rule 6.9 regarding the inclusion of applicants on the party card of an Award. This is consistent with the Commissions obligation to act "according to equity, good conscience and the substantial merits of the case" and although it may act "without regard to technicalities or legal forms" this does not usurp the requirement of ensuring procedural fairness in its processes. The submissions The appellant's submissions 1. The appellant filed written submission on 22 June 2020. 2. In summary, the appellant submitted that it was denied procedural fairness by the process adopted by the Industrial Registrar in determining the application, because the appellant was not provided with an opportunity to make submissions in respect of the application that may have had an impact upon the Decision. 3. The appellant contended that had it been provided with an opportunity to be heard in the application, it would have likely submitted that the applicant's interest in the award was not sufficient to satisfy the Industrial Registrar it should be place on the card pursuant to rule 6.9 of the Rules. 4. The appellant contended that the failure to provide procedural fairness arose because: 1. The applicant did not serve the appellant with the application until 13 May 2020, which was only 2 days before the Industrial Registrar approved it; and 2. The Industrial Registrar did not notify the appellant of her intention to hear the application on the papers and ultimately to make a determination on the TWU's application. 1. The appellant submits that in the circumstances, the Decision should be quashed and determined on its merits, with the parties on the party card being provided with procedural fairness to present submissions and or evidence. The applicant's submissions 1. The applicant filed submission on 6 July 2020. 2. The applicant submitted that: 1. "Australia Post Tracking available to the TWU indicates that the Application addressed to the Appellant was delivered on 8 May 2020 at 12:42 pm"; 2. There was no objection received to the applicant being included on the party card before the Decision; and 3. The applicant has an interest in the award and should be included on the party card. 1. The applicant summarised its claimed interest in the award as follows at [25] to [39] of their submissions: "The TWU provided in its original application details of the TWU's interest in the Award, which is summarised below. Firstly, the TWU is a registered organisation of employees as per Chapter 5, Part 3, Division 1 of the Industrial Relations Act 1996 (NSW). As per the registered rules of the TWU, rule 5.1.1 provides: An unlimited number of persons (males and females) who are employed in connection with the industry or industries and/or occupations and/or vocations and/or industrial pursuits of the transport on land or by air of persons and/or passengers and/or goods, wares, merchandise or any other material whatsoever by or on vehicles or animals or by motor, steam, oil, electric or other mechanically propelled contrivances; drivers, assistants and conductors of same, and stable and yard work wherever performed, including the work of attendance on vehicles, horses and other beasts of burden, whether in stables or otherwise, training and breaking in of horses, loading and unloading on to and/or from any vehicles; shunting by horse power; sanitary carting and work connected therewith but excepting railways, tramways or lifts, bread carters, pastry carters. The Award binds employees who are bus drivers that transport passengers by vehicle. The Award also binds employees employed in connection with the transport industry. By way of eligibility rules, the TWU is permitted to admit members bound by the Award. Based on this alone, the TWU submits that it satisfies the requirement to have an "interest" in the Award and therefore should be added to the party card of the Award. Secondly, it is anticipated that the Award in the near future will become a "Copied State Award" pursuant to Part 6-3A, Chapter 6 of the Fair Work Act 2009 (Cth). This is because the Award currently covers employees engaged by the New South Wales Government in what are known as Regions 7, 8 and 9, being geographically based timetabled bus services. The New South Wales Government announced that all of these regions will be tendered out to private operators over the coming 12-24 months. Once this occurs, the employment of all employees of the New South Wales Government will be transferred to the new private operator. When this occurs, existing employees covered by the Award will be subject to its content as an industrial instrument registered under the Fair Work Act 2009 (Cth). This is precisely what happened through the privatisation of the Inner-West Sydney passenger bus service (Region 6), whereby the contract for bus services was granted to "Transit Systems". As of 1 July 2018, Transit System employees previously employed by the New South Wales Government (Legacy Employees) have had their employment contracts be governed by a Copied State Award, being the Award in its form as at 1 July 2018. Since 1 July 2018, the TWU has recruited and admitted as members Legacy Employees, whose employment is subject to the Copied State Award. Given that the TWU has the potential to have existing and future members who will be affected by the outcome of the Award in any future versions, it is inherently clear that the TWU has an interest in the outcome of the Award to the extent that it should be notified of applications that relate to it by being added to the party card for the Award. The Appellant has yet to provide any submissions or evidence to demonstrate how it would sustain a position that the TWU has a sufficient interest in the Award to warrant it being added to the party card." 1. With respect to the appellant's complaint that they were denied procedural fairness, the applicant contended that: 1. The appellant had sufficient time within which to notify the Industrial Registrar of their objections to the application; and 2. With reference to Stead v State Government Insurance Commission (1986) 161 CLR 141 at [145], any denial of procedural fairness would not have affected the final outcome sufficiently to warrant the decision of the Industrial Registrar being quashed and the appellant's appeal being upheld. 1. The applicant submitted that the appellant's argument that the inclusion of the applicant on the party card imposed additional burden upon them was without merit. 2. Ultimately, the applicant submitted that the Commission ought to dismiss the appeal as "upholding the appeal would only serve to delay the inevitable and it would not be in the public interest to have the matter redetermined or reheard in those circumstances." The appellant's submissions in reply 1. The appellant filed submissions in reply to the applicant's submissions on 13 July 2020. In summary, the appellant: 1. Maintained that it did not receive the application until 13 May 2020, noting that even if the applicant's claim that it was received on 8 May 2020 is accepted, the Decision was still made within 7 days of service; 2. Argued that had they been given an opportunity to enter a Notice of Appearance, the matter would not have been determined without evidence; and 3. There will be argument with respect to the term "interest" as it is undefined under the Act and whether the applicant has such an interest. Consideration 1. The central issue for determination in the appeal is whether the appellant was denied procedural fairness by not being given an opportunity to oppose the applicant's application to be included on the party card of the Award. 2. In this regard, I note that there is a factual dispute as to whether the appellant was served with the application on 8 May 2020 or 13 May 2020. There is no evidence before the Commission to enable a determination of that issue. There is no affidavit of proof of service in the appeal, nor in the original file. However, I accept the appellant's submissions that even if the applicant is correct and they were served on 8 May 2020, the Decision with respect to the determination was issued before the expiration of a clear 7 days' notice. There was no Notice of Hearing and there was a denial of an opportunity to be heard on the application. 3. The applicant argues that even if there has been a denial of procedural fairness to the appellant, they would have been unsuccessful at resisting the application. The applicant set out its submissions with respect to the reasons that it claims an interest in the award as reproduced at [31]. Whilst the submission of the applicant as they relate to their interest in the award are persuasive, I agree with the appellant that the rules of procedural fairness dictate that they ought to have had an opportunity to contest the factual matters contained in the application through evidence and put forward their own case. For example the appellant refers to a long standing agreement between them and the applicant with respect to coverage of bus operations in NSW. While the existence of the agreement may or may not bear upon the outcome, it is fair that the appellant be given an opportunity to put its argument on this and any other basis upon which it may assert the application should be dismissed. Indeed, all the parties on the party card should be given that opportunity, including the STA. 4. Accordingly, I have determined that the appeal should be allowed and the matter remitted for redetermination. Orders 1. I make the following orders: 1. The Decision of the Industrial Registrar be quashed. 2. The Industrial Registrar redetermine the application in accordance with this decision. Janine Webster Commissioner ********** Amendments 11 March 2021 - Amendment to Catchwords on Cover Sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 March 2021