Southern Cross University v Andrews [2022] NSWIRComm 1108

Industrial Relations Commission New South Wales Medium Neutral Citation: Southern Cross University v Andrews [2022] NSWIRComm 1108 Hearing dates: In chambers and on the papers followed by delivery of ex tempore reasons on 14 November 2022 Date of orders: 11 November 2022 Decision date: 14 November 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Leave is granted to the Notifier to be represented at the conciliation of this matter by one solicitor and one barrister. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety —Notification of dispute pursuant to s 142 of the Work Health and Safety Act 2011 (NSW) – leave granted pursuant to s 166(2) of the Industrial Relations Act 1996 (NSW) for Notifier to be represented in conciliation proceeding by Australian legal practitioners Legislation Cited: Industrial Relations Act 1996 (NSW), ss 130, 166(2) Work Health and Safety Act 2011 (NSW), ss 117, 118, 119, 120 and 142 Category: Procedural rulings Parties: Southern Cross University (Notifier) Josh Andrews (First Respondent) National Tertiary Education Union (Second Respondent) Representation: Counsel: C Magee (Notifier)

Solicitors: Herbert Smith Freehills (Notifier)

Other: J Andrews (self-represented and for the Second Respondent) File Number(s): 2022/00326414

ex tempore decision – revised from transcript 1. On 1 November 2022, the Notifier, Southern Cross University, lodged a notification of a dispute pursuant to s 142 of the Work Health and Safety Act 2011 (NSW). Section 142(1) of the Work Health and Safety Act provides that the authorising authority, which in this case is the Commission, may deal with a dispute about the exercise or purported exercise by a work health and safety (WHS) entry permit holder of a right of entry under the Act. 2. Sub-section 142(2) provides that the authorising authority may deal with the dispute in any manner it thinks fit, including by means of mediation, conciliation or arbitration. 3. The matter was set down on 2 November 2022 for a compulsory conference to be held on 9 November 2022. That date was subsequently changed to today, 14 November 2022, on the application of the Notifier. 4. On reflection, I am not sure it is appropriate for the matter to have a so-called, "compulsory conference", as that is a procedure provided for in relation to industrial disputes that are notified pursuant to s 130 of the Industrial Relations Act 1996 (NSW). Nevertheless, the first step in a compulsory conference is usually to embark on a conciliation in an attempt to resolve the matter, and that is the process that we are going to embark upon today. 5. On 4 November 2022, the First Respondent, on his own behalf and on behalf of the Second Respondent, the National Tertiary Education Union (NTEU), wrote to the Registrar, attaching written submissions opposing the representation of the Notifier at the conciliation by legal practitioners, and reference was made to s 166(2) of the Industrial Relations Act. Section 166 provides as follows: (1) A party to proceedings before the Commission may appear personally or be represented by an Australian legal practitioner or by an agent who is not such a practitioner. (2) However, a party is not entitled to be represented in conciliation proceedings or in proceedings under Part 7 (Public sector disciplinary appeals) of Chapter 2 by a person who is an Australian legal practitioner or an agent who is an industrial agent without the leave of the Commission. (3) The leave of the Commission is not required if the Australian legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation. (4) The leave of the Commission is also not required if the Australian legal practitioner represents a State peak council and is an officer or employee of the State peak council. (5) The Commission may allow any party appearing before it the services of an interpreter. 1. The respondents essentially submitted that if the Commissioner were to grant leave it would unnecessarily formalise the conciliation proceedings process and introduce legal representation into a conciliation process where such representation is not necessary for either party. 2. It was also submitted that granting leave would necessarily escalate the dispute by incentivising the NTEU to obtain formal legal representation in order to maintain the balance of the dispute resolution process, despite the NTEU believing that, if not for the need to ensure a commensurate response and representation, it would otherwise be capable of representing itself in conciliation of the dispute. 3. On 8 November 2022 I directed the Notifier to file and serve by email, by no later than 12pm on 10 November 2022, any submissions in support of the Commission granting leave for the Notifier to be represented at the conciliation proceedings by legal practitioners. Submissions were duly filed and, in short, the Notifier submitted that leave should be granted as it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter and that it would be unfair for HR officers of the Notifier to represent the Notifier at any conciliation, in circumstances where those individuals, as I understand it, are alleged by the Respondents to be reasonably suspected of breaches of the Work Health and Safety Act. 4. On Friday, 11 November 2022, in chambers, I granted leave for the Notifier to be represented at the conciliation of this matter by one solicitor and one barrister. Obviously, those practitioners were also to be permitted to have their instructors from the University attend the conciliation. 5. I was initially minded not to permit the Notifier to be legally represented, on the basis that conciliation before this Commission should be relatively informal, hence the need for leave to be sought and, as much as possible, I wanted to ensure that there was an equal playing field. 6. I was concerned that the involvement of lawyers, particularly on one side only, from a top tier commercial law firm, together with a very experienced senior and junior barrister, had the potential, to use the words of the NTEU, to escalate rather than de-escalate the dispute. However, ultimately, I was persuaded otherwise. 7. The matter does involve a matter of some legal and factual complexity as it concerns sections of the Work Health and Safety Act, specifically ss 117, 118, 119, 120 and 142, that it seems to me have received little judicial consideration. 8. Further, a significant aspect of the dispute centres upon whether the First Respondent, being the WHS entry permit holder, held a reasonable suspicion that the Notifier had or was contravening provisions of the Work Health and Safety Act, as particularised in the entry notice. Whether the matters particularised in the entry notice were capable of comprising contraventions of the Act, based on the limited material I have reviewed to date (noting that I have not even seen the entry notice), is not necessarily straightforward. It is not a case, it seems to me, such as a suspected lack of guarding over a conveyor belt, for instance. It involves, as I understand it, alleged psychosocial hazards and risks in the workplace and the Notifier's conduct in respect of a staff survey that had been conducted by the Union. 9. In those circumstances, it seems to me that the conciliation is likely to be run more efficiently and focused on the relevant issues to be determined if the Notifier is permitted to be represented by legal practitioners. 10. I am also not convinced it would be appropriate for the Notifier to be represented at the conciliation by HR personnel employed by the Notifier, who are named in the entry notice, given that a contravention of the Work Health and Safety Act can result in criminal penalties. 11. While there may be other personnel employed by the Notifier who would be capable of representing the Notifier at the conciliation, it does seem to me that both parties and the Commission would be better assisted in having legal representatives experienced in work health and safety law appear on behalf of the Notifier. 12. Nevertheless, I do remain concerned to ensure that there remains an equal playing field throughout the conciliation. Of course, any application by the Respondents to be represented by a legal practitioner would similarly be granted. But, in any event, if I consider that the involvement of the legal practitioners is getting in the way of a successful conciliation of the matter, I may review my decision and the Respondents may also apply for leave to be revoked in the event that the Notifier's representation is actually getting in the way of resolution of the matter.