Transport Workers’ Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 Hearing dates: 17 June 2021 Date of orders: 6 July 2022 Decision date: 06 July 2022 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan, Commissioner Webster Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The orders of Commissioner Murphy of 12 October 2020 are quashed. (4) The matter is remitted to a single Commissioner, as determined by the Chief Commissioner, to determine the application for external review pursuant to s 229 of the Workplace Health and Safety Act 2011 (NSW) in accordance with the law. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Commission conducts a merits review in an external review pursuant to s 229 of the Work Health and Safety Act 2011 – Commission must take into account mandatory matters in determining work groups when undertaking an external review – work groups not confined to those who have made a request pursuant to s 50 or who are represented by someone who did – views of workers who may become a part of work groups must be considered Legislation Cited: Industrial Relations Act 1996 (NSW), ss 187, 188, 191, 192 Interpretation Act 1987 (NSW) s 34 Work Health and Safety Act 2011 (NSW), ss 3, 8, 14, 19, 46-54, 69, 80-82, 156, 223-227, 229 Work Health and Safety Regulation 2017, cll 16, 17 Cases Cited: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Soulezmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009 Transport Workers' Union of NSW and Ors v SafeWork NSW and Anor [2021] NSWIRComm 1018 Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Category: Principal judgment Parties: Transport Workers' Union of Australia, New South Wales (first appellant) Marcello Batista (second appellant) Shuhel Hussain (third appellant) Igor Perino (fourth appellant) Stephen Liang Gie Khouw (fifth appellant) Ashley Clive Moreland (sixth appellant) Luigi Amoresano (seventh appellant) Safework NSW (first respondent) Deliveroo Australia Pty Ltd (second respondent) Representation: Counsel: M Gibian SC with P Boncardo (appellants) C Magee (first respondent) Y Sharriff SC with V Bulut (second respondent) Solicitors: Minter Ellison (second respondent) File Number(s): 2020/322775 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: Ex tempore decision, 12 October 2020, TR3063 Date of Decision: 12 October 2020 Before: Commissioner Murphy