Industrial Relations Commission New South Wales Medium Neutral Citation: 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 Hearing dates: 21 November 2012 Decision date: 11 December 2012 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: The application is dismissed Catchwords: APPLICATION FOR REVIEW - Work Health and Safety Act 2011 - decision of Regulator regarding attendance of applicant at health and safety representative course - whether applicant had exhausted all his entitlements to attend course - held - statutory decision for purported review did not exist - decision made in absence of jurisdiction constituting error - no decision at all - no decision to review - application dismissed - s 72, s 85(6), s 90(4), s 229 of Work Health and Safety Act 2011 Legislation Cited: Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Cases Cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454 Category: Principal judgment Parties: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) (Applicant) WorkCover Authority of New South Wales (First Respondent) State Transit Authority of the Government Service (Second Respondent) Representation: Mr AM Slevin of counsel (Applicant) Mr G Diggins solicitor (First Respondent) Mr G Hanson (Second Respondent) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (Applicant) WorkCover Authority of New South Wales (First Respondent) State Transit Authority (Second Respondent) File Number(s): IRC 964 of 2012 DECISION 1Mr Mick Amarasinghe ("the applicant"), who is an employee of the State Transit Authority of NSW ("the second respondent"), seeks in an amended application, an external review of the decision of Inspector David Webb of the WorkCover Authority of NSW ("the first respondent"), who determined that the second respondent was to: ... use the WorkCover accredited training provider "Courtenell Pty Ltd" to provide training to HSR's [Health and Safety Representatives], Safety Committees or any other person who is entitled under the WHS Act 2011 or WHS Regulation 2011 so far as reasonably practicable. 2The second respondent filed a submitting appearance, save as to costs. Background 3Pursuant to s 224 of the Work Health and Safety Act 2011 ("the WHS Act"), the applicant requested the first respondent to conduct an internal review of the decision made by Inspector Webb on 13 July 2012 regarding his attendance at a training course. On 23 August 2012, Mr Steve Jones, a person appointed by the first respondent, delivered a decision following the internal review of Inspector Webb's decision. In that decision, the first respondent relevantly stated: The original decision has been set aside and replaced with the following decision: The second respondent must consult with the applicant when choosing a Training Course The direction is relevant to the applicant (eligible person) The PCBU [Person Conducting the Business or Undertaking] must engage an ATP [Approved Training Provider] to deliver the course of training such as anyone of the four who were invited to provide a quotation. 4Pursuant to s 229 of the WHS Act, the applicant seeks an external review of the decision of Mr Jones, an officer of the first respondent. This section reads: 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made: (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned. 5The terms of the relief sought by the applicant are: The decision of the Inspector, as varied by the Internal Review of 23 August 2012, be set aside and replaced with the following: 1. The Second Respondent must allow the Applicant to attend Health and Safety Representative Courses for NSW Health and Safety Representatives conducted by HOSTA. 2. The second Respondent must pay the usual costs imposed by HOSTA for the course. 6HOSTA is an occupational health and safety course provider approved as an Approved Training Provider ("ATP") and run by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch ("AMWU"). First respondent's position 7Mr G Diggins solicitor, who appeared for the first respondent submitted that these proceedings were incompetent, as the Commission is without jurisdiction. In essence, the first respondent contended that the claim brought by the applicant in the amended application is that he was entitled to attend a one day bridging course. The first respondent submits that as the applicant attended the one day gap training course conducted by Courtenell Pty Ltd ("Courtenell") on 25 June 2012, the applicant had used his entitlement under Sch 18B of the Work Health and Safety Regulation 2011 ("the WHS Regulation") to attend gap training . Therefore pursuant to cl 21(1)(a) of the Regulation, the applicant is deemed to have completed the training allowed. 8It follows, so the first respondent contended, that in such circumstances as at the date of the decision of Inspector Webb on 13 July 2012, the applicant had exhausted all his entitlements to attend a course of training in work health and safety. 9As the applicant had no entitlement to attend a course of training in work health and safety, the statutory conditions for the purported decision of Inspector Webb did not exist. The purported decision was therefore made in the absence of jurisdiction, such absence constituting jurisdictional error. 10The purported decision of the internal reviewer was therefore also affected by jurisdictional error and constituted no decision at all. It therefore followed, so it was submitted by the first respondent that for the purposes of s 229(1)(b) of the WHS Act, there is no decision to be reviewed by this Commission. Relevant statutory provisions and regulations 11Section 72 of the WHS Act, deals with the obligations to train Health and Safety Representatives ("HSRs") and provides as follows: 72 Obligation to train health and safety representatives (1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is: (a) approved by the regulator, and (b) a course that the health and safety representative is entitled under the regulations to attend, and (c) subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking. (2) The person conducting the business or undertaking must: (a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training, and (b) pay the course fees and any other reasonable costs associated with the health and safety representative's attendance at the course of training. (3) If: (a) a health and safety representative represents a work group of the workers of more than one business or undertaking, and (b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative, each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative. (4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1) (c) and (2), either party may ask the regulator to appoint an inspector to decide the matter. (6) The inspector may decide the matter in accordance with this section. (7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6). Maximum penalty: (a) in the case of an individual-$10,000, or (b) in the case of a body corporate-$50,000. 12For the purposes of s 72(1), the entitlement to training is found in cl 21 of the WHS Regulation: 21 Training for health and safety representatives (1) For the purposes of section 72 (1) of the Act, a health and safety representative is entitled to attend the following courses of training in work health and safety: (a) an initial course of training of 5 days, (b) 1 day's refresher training each year, with the entitlement to the first refresher training commencing 1 year after the initial training. (2) In approving a course of training in work health and safety for the purposes of section 72 (1) of the Act, the regulator may have regard to all relevant matters, including: (a) the content and quality of the curriculum, including its relevance to the powers and functions of a health and safety representative, and (b) the qualifications, knowledge and experience of the person who is to provide the course. (3) The regulator may revoke or vary an approval under this clause. (4) The regulator may impose conditions on an approval under this clause and may vary those conditions. Note. This clause prescribes courses of training to which a health and safety representative is entitled. In addition to these courses, the health and safety representative and the person conducting the business or undertaking may agree that the representative will attend or receive further training. 13Part 4 of Sch 18B of the Regulation sets out transitional provisions in respect of the WHS Act and relevantly provides as follows: Part 4 Consultation and representation ... 12 Existing health and safety representatives (1) A person is a health and safety representative under the WHS Act (a deemed health and safety representative) if the person is a worker who was, immediately before the repeal of the OHS Act: (a) an OHS representative or an elected member of an OHS committee under the OHS Act, and elected as such no earlier than 2 years before that repeal, or (b) a member of an OHS committee under the OHS Act by virtue of being: (i) a site check inspector or an electrical check inspector in relation to a coal workplace, and elected as such under the Coal Mine Health and Safety Act 2002 no earlier than 2 years before that repeal, or (ii) a site check inspector in relation to a mine, and elected as such under the Mine Health and Safety Act 2004 no earlier than 2 years before that repeal. (2) A person is a deemed health and safety representative under this clause only for the period of 3 years after the date of the person's election as such a representative, member or inspector. (3) A person is a deemed health and safety representative under this clause only for the work group of which the worker was a member immediately before the repeal of the OHS Act. (4) This clause does not affect the requirements of section 85 (6) or 90 (4) of the WHS Act. Note. Under those provisions, a health and safety representative cannot give a direction to cease unsafe work or issue a provisional improvement notice without having first completed certain training. Clause 13 provides for gap training for deemed health and safety representatives for this purpose. 13 Gap training of health and safety representatives (1) The regulator may approve a course of training (approved gap training) to be undertaken by deemed health and safety representatives for the purpose of qualifying them to issue provisional improvement notices or give a direction to cease work under section 85 or 90 of the WHS Act. (2) A deemed health and safety representative is not eligible to undertake approved gap training unless he or she completed the course of training prescribed by the OHS Regulation for OHS representatives and members of OHS committees before the repeal of the OHS Act. (3) A deemed health and safety representative who completes approved gap training is deemed to have completed the training referred to in sections 85 (6) and 90 (4) of the WHS Act. Agreed statement of facts 14An agreed statement of facts provided by the parties read as follows: 1. The Applicant is an employee of the Second Respondent. 2. On 1 February 2011 the Applicant was elected as a member of an OHS committee for the purposes of the Occupational Health and Safety Act 2000. 3. Prior to 1 January 2012 the Applicant completed the course of training prescribed by the Occupational Health and Safety Act 2000 for OHS representatives and members of OHS committees. The course and dates of attendances are: a. WorkCover Accredited "Course in OHS Consultation" conducted by Be Safe on the 11th, 18th, 25th May & 1st June 2009. 4. The First Respondent has approved gap training courses provided by a number of training providers to be undertaken by deemed health and safety representatives for the purpose of qualifying them to issue provisional improvement notices or give a direction to cease work under section 85 or 90 of the Work Health and Safety Act 2011 ("the Act"). Both Courtenell Pty Ltd and David Henry trading as HOSTA provide such approved gap training courses. 5. In April 2012 the Applicant requested to attend the approved gap training course provided by HOSTA. 6. In June 2012 the Second Respondent directed the Applicant to attend the gap training course provided by Courtenell Pty Ltd. 7. On 25 June 2012 the Applicant attended the gap training course provided by Courtenell Pty Ltd. 8. On 13 July 2012 David Webb, an inspector of the First Respondent, purported to make a decision pursuant to section 72(5) & (6) of the Act. 9. On 23 August 2012 Steve Jones purported to make a decision pursuant to section 226 of the Act reviewing the abovementioned decision of David Webb. 10. On 7 September 2012 the Applicant filed the present application seeking review of the abovementioned decision of Steve Jones. Evidence of the applicant 15Mr AM Slevin of counsel, who appeared for the applicant, read an affidavit of the applicant sworn 12 November 2012. 16The applicant stated that he commenced employment as a motor mechanic with the second respondent on 20 January 2003. He currently works at the Mona Vale Depot of the second respondent. 17On or about 3 April 2012, the applicant completed a form entitled "HOSTA - OH&S Courses Expressions of Interest". He forwarded a copy to HOSTA and to Mr Aldo Catterini, who is employed by the second respondent as the Mona Vale Depot's Service coordinator. Mr Catterini is the applicant's direct supervisor. 18Approximately two days later, Mr Catterini advised the applicant that the second respondent were working on internal providers to do courses and he would have to wait for a decision. 19Approximately two weeks later the applicant received a phone call from a person who said they were calling about the HOSTA course. He could not remember the person's name. However, he said he was advised that he was not entitled to the five day HOSTA course but was entitled to attend a one day bridging course. 20On 15 May 2012, the applicant stated he received an email from Mr Catterini, together with two documents from Ms Wendy Ablott, Safety Professional Training and Competency Officer, entitled "Health and Safety Representative Training Courses Required Documentation". The second document was an overview of the course. 21On the same day, Mr Catterini advised the applicant that he had rearranged his roster for 25 June 2012, so that he could go to Brookvale to undertake the one day gap course, which was to be conducted by Courtenell Pty Ltd. He stated he was neither involved in any discussion with any manager, or any other employee of the second respondent regarding the gap course, nor was it his choice to attend this course. 22On or about 15 May 2012, he stated that he telephoned Mr David Henry who is an approved training provider with HOSTA. Mr Henry is also employed by the AMWU as a Work Health and Safety Officer. 23The applicant stated that Mr Henry advised him that there was an issue, in that the legislation gave the applicant as an HSR the right to choose the training provider. 24Mr Henry stated that: "At the moment, we [AMWU] are looking at boycotting all the training provided by the STA". 25Mr Henry further stated that "it is up to you whether you attend the [Courtenell] course or not". He said the AMWU could "take the matter up on your behalf and get the matter fixed". 26The applicant's evidence was that Mr Henry engaged in discussions with the second respondent in respect of this issue. 27On 20 June 2012, Mr Henry informed the applicant that the second respondent had advised that he could not attend the HOSTA course. Mr Henry suggested that the matter be escalated and that the assistance of the first respondent should be sought. 28The applicant's evidence was that he understood that on 20 June 2012, Mr Henry, acting on his behalf, requested that the first respondent decide the matter of the provider of the gap training pursuant to s 72(5) of the WHS Act. He stated that on 25 June 2012, he attended the gap training course because he thought that if he refused, the second respondent would discipline him. He stated that he understood that on 25 July 2012, Mr Henry, again acting on his behalf, made an application for an internal review of the decision of Inspector Webb. Consideration 29The issue for determination in this matter is whether the Commission has jurisdiction to hear and determine the application. 30In these proceedings the applicant relies upon s 229(1)(b) of the WHS Act as the basis for his application to the Commission to conduct an external review of the decision of Mr Jones, who undertook an internal review of the decision made by Inspector Webb on 13 July 2012. 31Part 12, Div 1 and Div 2 of the WHS Act make provision for internal review of decisions. In particular, s 223(1), which is found in Pt 12 permits the regulator to review a decision under s 72(6) of the WHS Act. Section 72(1)(c) and s 72(2) make provision for the attendance of a HSR at a course of training in work health and safety. The course of training in work health and safety must be as provided for in s 72(1)(b) of the WHS Act "a course that the health and safety representative is entitled under the regulations to attend". 32Both s 72(5) and s 72(6) make provision for an inspector to be appointed to decide any disagreement between the person conducting the business (the second respondent) and the health and safety representative. 33It is the first respondent's submission that at the time of the decision of Inspector Webb on 13 July 2012, the applicant had no entitlement under the regulations to attend a course of training in work health and safety. The basis of this submission is found in the transitional provisions in the WHS Act. 34Pt 4 of Sch 18B, of the Regulation, in particular cl 12 and cl 13, provides that these provisions have the effect of modifying the training entitlements of certain HSRs that would otherwise apply. The applicant is part of the class of HSRs affected by the transitional provisions. I have earlier set out these provisions. 35In accordance with the cl 12(1) of Pt 4 of Sch 18B of the Regulation, as the applicant was elected as a member of the OHS Committee for the purposes of the Occupational Health and Safety Act 2000 ("the OHS Act") on 1 February 2011, he is deemed to be a HSR under this Part. 36The first respondent as the regulator, approved a course of gap training for deemed HSRs. This course was conducted by Courtenell. The applicant undertook this course on 25 June 2012. As a result of undertaking this course, the applicant pursuant to cl 13(3) of Sch 18B is deemed to have completed the training referred to in s 85(6) and s 90(4) of the WHS Act. The training referred to in these sections is relevantly: 85 Health and safety representative may direct that unsafe work cease ... (6) A health and safety representative cannot give a direction under this section unless the representative has: (a) completed initial training prescribed by the regulations referred to in section 72 (1) (b), or (b) previously completed that training when acting as a health and safety representative for another work group, or (c) completed training equivalent to that training under a corresponding WHS law. 90 Provisional improvement notices ... (4) A health and safety representative cannot issue a provisional improvement notice unless the representative has: (a) completed initial training prescribed by the regulations referred to in section 72 (1) (b), or (b) previously completed that training when acting as a health and safety representative for another work group, or (c) completed training equivalent to that training under a corresponding WHS law. 37The applicant is therefore deemed to have completed the initial training course prescribed by cl 21(1)(a) of the Regulation (an internal course of training for five days). The only other training referred to in cl 21 is one day refresher training each year: cl 21(1)(b). The entitlement to refresher training commences one year after the completion of the training course. 38The applicant in his original application sought to attend a five day training course. The applicant subsequently filed an amended application seeking to attend a one day bridging course. Subsequently in written submissions, the applicant contended that he had an entitlement to undergo refresher training, although there has never been a dispute between the applicant and the second respondent in respect of refresher training. A case has not been pleaded in respect of undertaking refresher training. 39Having undertaken approved gap training provided by Courtenell, the applicant was deemed to have undertaken initial training. As this gap training occurred on 25 June 2012, he is not entitled to attend refresher training until 24 June 2013. 40Therefore, it must follow, that as at the date of the decision of Inspector Webb on 13 July 2012, the applicant had exhausted all his entitlements to attend a course of training in work health and safety. 41As the applicant had no entitlement to attend a course of training in work health and safety, the statutory conditions for the purported decision of Inspector Webb did not exist. It followed, so it was submitted by the first respondent that such decision therefore was made in the absence of jurisdiction and constituted a jurisdictional error. 42In Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, the High Court stated: In Craig v South Australia, this Court recognised the difficulty of distinguishing between jurisdiction and non-jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala: "The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not." 43In Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 at [51] ; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598, Gaudron and Gummow JJ observed: There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. ... 44Their Honours' observations were confirmed in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 195 ALR 24; (2003) 77 ALJR 454 and in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [29]; (2004) 207 ALR 12; (2004) 78 ALJR 992: 45In Plaintiff S157/2002 v Commonwealth, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said at [76]: "[o]nce it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression 'decision[s] ... made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'. Thus, if there has been jurisdictional error because, for example, of a failure to discharge 'imperative duties' or to observe 'inviolable limitations or restraints', the decision in question cannot properly be described in the terms used in s 474(2) as 'a decision ... made under [the] Act' and is, thus, not a 'privative clause decision' as defined in s 474(2) and (3) of the Act." 46The decision of Inspector Webb, where the applicant had no further entitlements was therefore no decision at all. There was consequently no decision for the internal reviewer to review Inspector Webb's decision. The purported decision of the internal reviewer was therefore also affected by jurisdictional error and constituted no decision at all. 47The power granted to this Commission under s 229 of the WHS Act is to conduct a merits review of the decision of the internal reviewer made under s 226. 48The applicant sought to contend that the refusal by the second respondent to permit the applicant to undertake a refresher course resulted in there being jurisdiction to deal with the second respondent's failure to provide refresher training. The applicant relied on Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584. In my view, reliance on this case is misplaced. In Abebe v Commonwealth, the High Court of Australia recognised that jurisdiction "is the authority to decide". However, the applicant has at no stage requested refresher training, nor has the second respondent refused to agree to such training. It follows that there was nothing to decide in respect of refresher training. 49If and when the second respondent declines a request by the applicant to undertake refresher training, jurisdiction would arise pursuant to s 229 of the WHS Act for this Commission to conduct a merit review should such an application be brought. 50The power granted to the Commission under s 229(4) of the WHS Act is to conduct a merit review. That is, to "confirm, vary or revoke" the decision being reviewed so as to determine what is the correct or preferable decision. Accordingly, the Commission "stands in the shoes" of the decision-maker and may only exercise those powers that were available to that decision-maker. 51The statutory pre-conditions for the decisions of Inspector Webb and subsequently, the internal reviewer, Mr Jones, did not exist. Such conditions will not exist until 24 June 2013. 52Accordingly, there were no power available to be exercised by Inspector Webb or the internal reviewer. 53It follows therefore, that the Commission is without jurisdiction to deal with this application. The application should therefore be dismissed. Order 54The application is dismissed. ********** 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 December 2012