Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484

Supreme Court New South Wales

Medium Neutral Citation: Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484 Hearing dates: 23 November 2022 Date of orders: 9 May 2023 Decision date: 09 May 2023 Jurisdiction: Common Law Before: Walton J Decision: (1) The Union shall bring in Short Minutes of Order by 10.00am Thursday 11 May reflecting this judgment. (2) Costs are reserved. (3) Any agreement as to costs may be incorporated in Short Minutes of Order brought in under 1 above or by Short Minutes of Order forwarded at a later time to the Chambers of the Court but in any case, no later than 21 days after this judgment. (4) Any dispute as to costs shall the determined upon a timetable agreed between the parties which timetable shall be forwarded to the Chambers of the Court within 21 days of this judgment. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Office of the National Rail Safety Regulator — judicial review — delegated decision by Chief Operating Officer to vary first defendant's accreditation status permitting utilisation of crew cars in national freight operations —no consultation with Union — whether decision-maker committed jurisdictional error ADMINISTRATIVE LAW — ground of review other than procedural fairness — delegation of power by Regulator — scope of instrument of delegation — whether delegation of power included making determinations of "significant change" to the scope and nature of an applicant's operations even if no relevant ONRSR procedure existed — delegation of power only limited where a relevant ONRSR procedure determined such a "significant change" STATUTORY INTERPRETATION — Rail Safety National Law 2012 (NSW) — s 99(3)(a)(iii) — whether decision-maker misapprehended nature of opinion required to be formed by misconstruing consultation requirement — whether "representing" in s 99(3)(a)(iii) means any person entitled to be represented by a union or requires actual membership of union — where a proper reading of the statutory text in light of context and purpose does not support a reading of "representing" to mean "entitlement to represent" – decision-maker applied s 99(3)(a)(iii) on its proper construction STATUTORY INTERPRETATION — Rail Safety National Law 2012 (NSW) — s 99(3)(a)(i) –– whether consultation with "persons likely to be affected" in s 99(3)(a)(i) may be limited to persons carrying out railway operations, rather than including persons working at the railway premises or with rolling stock — where s 99(3)(a)(i) deems persons working at the railway premises or with rolling stock as "persons likely to be affected" — decision-maker misconstrued scope of consultation requirement in s 99(3)(a)(i) ADMINISTRATIVE LAW – jurisdictional error – whether misconstruction of s 99(3)(a)(i) of Rail Safety National Law 2012 (NSW) amounted to jurisdictional error – where decision-maker acted as a "statutory tribunal" — where mandatory language of provision indicates Parliament did not intend to vest Regulator with jurisdiction to determine the scope of consultation requirements — where misconstruction of s 99(3)(a)(i) caused decision-maker to form opinion otherwise than in accordance with law – decision-maker's misconstruction fell into jurisdictional error ADMINISTRATIVE LAW — ground of review other than procedural fairness — findings of fact — whether decision-maker unreasonably or irrationally concluded plaintiff had no members amongst the affected rail safety workers — where decision-maker was aware of emails stating the plaintiff did have members that would be doing the work the subject of the variation application — decision-maker's conclusion was based on findings or inferences of fact not unreasonable or irrational at law Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Interpretation Act 1987 (NSW) Rail Safety National Law 2012 (NSW) ss 50, 65, 69, 99(3) 249(2)(c), Pt 3 Div 4, Pt 3 Div 6, Sch 2 cll 7, 8 Fair Work Act 2009 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) Supreme Court Act 1970 (NSW) Rail Safety (Adoption of National Law) Act 2012 (NSW) Rail Safety (National Law) South Australia Act 2012 (SA) Rail Safety National Law National Regulations 2012 (NSW) Rail Safety National Law National Regulations 2015 (WA) Work Health and Safety Act 2011 (NSW) Cases Cited: Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247; [2014] HCA 42 Australian Tramway Employees' Association v Prahran & Malvern Tramway Trust (Union Badge Case) (1913) 17 CLR 680; [1913] HCA 53 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14 Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 268 ALR 514 ConnectEast Management Ltd v Commissioner of Taxation (Cth) (2009) 175 FCR 110; [2009] FCAFC 22 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales [2000] ASC 155-041; [1999] NSWSC 1021 Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Friends of Leadbeter's Possum Inc v VicForests (2018) 260 FCR 1; [2018] FCA 178 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 Minister for Immigration and Border Protection v MZZMX (2020) 280 FCR 1; [2020] FCAFC 175 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 Plaintiff B9/2014 v Minister for Immigration and Border Protection (2014) 227 FCR 494; [2014] FCAFC 178 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641; [1974] HCA 4 Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 262 CLR 456; [2017] HCA 55 Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71; [1957] HCA 19 Secretary of the Ministry of Health v Australian Paramedics Association (NSW) (2022) 320 IR 198; [2022] NSWSC 1431 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; (2022) 320 IR 249 Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12 Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 Texts Cited: M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Australian Rail Tram and Bus Industry Union (Plaintiff) Aurizon Operations Limited (First Defendant) National Rail Safety Regulator (Second Defendant) Representation: Counsel: Mr P Boncardo (Plaintiff) Dr D Roche with Mr M Pulsford (First Defendant) Mr J Phillips SC with Mr S Thompson (Second Defendant)