Elgas Limited v SafeWork NSW [2021] NSWIRComm 1101

Industrial Relations Commission New South Wales Medium Neutral Citation: Elgas Limited v SafeWork NSW [2021] NSWIRComm 1101 Hearing dates: 20 December 2021 Date of orders: 20 December 2021 Decision date: 20 December 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application by Mr S Reside to be joined as a party to the proceedings is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – external review – application by union official to be joined as a party to the proceedings – whether applicant on the motion had demonstrated a real and sufficient interest in the proceedings Legislation Cited: Nil Cases Cited: NSW Rural Fire Service v SafeWork NSW (2016) NSWIRComm 4 Re Laundry Employees (State) Award No 2 (1993) 49 IR 91 Texts Cited: Nil Category: Procedural rulings Parties: Elgas Limited (Applicant) SafeWork NSW (Respondent) Representation: T Frost, HWL Ebsworth Lawyers (Applicant) Z Bramley, SafeWork NSW (Respondent) S Reside, CFFMEU (Applicant on the Motion) File Number(s): 2021/326903 Publication restriction: No

EX TEMPORE decision 1. Before coming on the Bench today, I had an opportunity to consider Mr Shane Reside's application to be joined as a party to the proceedings, including the submissions that had been put on by Elgas Limited ("Elgas") in opposition to that application. 2. As Mr Frost submitted, when Mr Reside first became involved in these proceedings he indicated that the Maritime Union of Australia division of the Construction, Forestry, Mining, Maritime and Energy Union ("MUA"), would be seeking to be joined as a party to these proceedings. The matter came before me for directions on 7 December 2021, during which I had quite extensive discussions with Mr Reside as to the application that was proposed. This included Mr Reside indicating that he is not a legal practitioner and that he would need time to obtain advice as to the application that would need to be made to have the MUA joined to these proceedings. 3. Having heard from Mr Reside, I directed that the MUA file and serve any application to be joined, together with any submissions and evidence in support of that application, by 4pm on 15 December 2021. A consequential direction was made for Elgas to file and serve any evidence and submissions in reply to the MUA's material. The application was listed for hearing today. 4. The application subsequently filed by Mr Reside did not come supported by evidence and submissions. Hearing Mr Reside today and taking the document that was tendered into evidence at its highest, his interest in the proceedings appears to be that he was appointed to act as a representative for at least two workers who might be subject to the decision under review. 5. Mr Frost drew my attention to the matter of Re Laundry Employees (State) Award No 2 (1993) 49 IR 91 and passages in that decision which have been quoted in subsequent proceedings before the Commission on many occasions. In addition to the passages to which Mr Frost referred me, I note also that the Full Bench stated (at 100): "The last mentioned aspect itself involves the necessity to restrict appearances in proceedings to those who have a real interest in the outcome thereof. Appearances should be and are therefore confined to principal or intervenor parties who establish a real and sufficient interest in the outcome of the proceedings. In cases where the matter is not self-evident, the claim of a person to appear as a party in proceedings may well be the subject of challenge by other parties to the proceedings and for good reason. They have a legitimate interest in ensuring that persons who do not have a proper interest in the outcome of the proceedings should not be heard and the Commission itself has an obvious concern in the matter." 1. I note also the cautionary note made by the Full Bench that agency "should not be used as a vehicle for expressing what are in substance the views of the agent about the subject matter of the proceedings rather than those of the person that they represent" (at 101). 2. It may be, in keeping with the discussion of Kite AJ, as he then was, in NSW Rural Fire Service v SafeWork NSW (2016) NSWIRComm 4, that the people that Mr Reside purports to represent in these proceedings may themselves have an interest, but that is not the application that is before the Commission. The Commission has an application that Mr Reside in a personal capacity be joined as a party to these proceedings. 3. I accept the submissions of Elgas that Mr Reside has failed to demonstrate that he himself has a real and sufficient interest in the outcome of the proceedings. He is not a worker to whom the decision under review applies. At most, he is an advocate for workers who might be affected by that decision. There is no material before the Industrial Relations Commission that supports the application. The application, therefore, is dismissed. Damian Sloan Commissioner