Industrial Relations Commission New South Wales Medium Neutral Citation: NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 Hearing dates: 7 December 2015 Date of orders: 05 May 2016 Decision date: 05 May 2016 Jurisdiction: Industrial Relations Commission Before: Kite AJ Decision: Order that Shane Bryant be granted leave to intervene in matter No IRC 737 of 2014, 33543 of 2016. Catchwords: INTERVENTION – application by individual worker for leave to intervene – external review of internal review decision on determination of workgroups – nature of the workers interest - legislative scheme – whether real and sufficient interest to justify leave – whether real and sufficient interest to be joined as a party. EXTERNAL REVIEW – Work Health and Safety Act s 229 – nature of review – administrative review on merits – hearing de novo Legislation Cited: Industrial Relations Act 1996 (NSW) ss 146, 151, 153, 163 and 167 State Insurance and Care Governance Act 2015 (NSW) Schedules 4 and 14 Work Health And Safety Act 2011 (NSW) ss 50, 51, 52, 53, 54, 62, 229B, 223, 224, 226, 229 and Part 9 Work Health and Safety Regulation 2011 (NSW) 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 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 Police Integrity Commission v Shaw (2006) 66 NSWLR 446 Project Blue Sky INC v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Category: Procedural and other rulings Parties: NSW Rural Fire Service (Applicant/Respondent on the Motion) SafeWork NSW (First Respondent) Shane Bryant (Second Respondent/Applicant on the Motion seeking leave to intervene) Representation: BD Hodgkinson SC with W Thompson of counsel (Applicant) C Magee of counsel(First Respondent) S Bryant (Self represented) Solicitors: Clayton Utz Lawyers (Applicant/Respondent on the Motion) SafeWork NSW (First Respondent) File Number(s): 33543 of 2016 (formerly IRC 737 of 2014) Decision 1. By its application (the application) filed on 14 October 2014 the NSW Rural Fire Service (RFS) seeks an external review of a decision made by SafeWork NSW (SafeWork) pursuant to s 229(1)(b) of the Work Health And Safety Act 2011 (NSW) (the Act). In the application the WorkCover Authority of New South Wales and Mr Shane Bryant were named as respondents. 2. The WorkCover Authority of New South Wales was abolished with effect from 1 September 2015. From that date it was replaced as the regulator under the Work Health and Safety Act by SafeWork: State Insurance and Care Governance Act 2015 (NSW) Schedules 4 and 14. Background 1. Mr Bryant has been a member of the Rural Fire Service for more than 28 years. On or about 4 April 2013 he made a request to RFS, in accordance with s 50 of the Act, for the election of health and safety representatives. Such an application imposes an obligation on an employer to facilitate the establishment of workgroups in accordance with the processes prescribed in ss 52 and 53 of the Act. 2. On or about 6 May 2013 Mr Bryant requested SafeWork to appoint an inspector for the purposes of s 54 of the Act. SafeWork NSW appointed an Inspector to make the determinations required under s 54(2) of the Act. 3. The Inspector determined that no changes were required to the extant consultative arrangements. 4. Pursuant to s 224 of the Act, Mr Bryant applied on 2 July 2014 for an internal review by SafeWork. On 19 September 2014 SafeWork set aside the decision of the Inspector. SafeWork then required RFS to consult and implement work groups and facilitate the appointment of health and safety representatives (HSRs). 5. RFS then filed its application. The application was first listed before Boland AJ on 31 October 2014. At that time RFS sought and obtained an order staying the operation of the internal review decision. The stay order continues in force. 6. At the same time RFS made clear that, although it named Mr Bryant as a respondent, it did not envisage him having any substantive role in the proceedings. SafeWork also expressed the view that Mr Bryant's status in the proceedings was unclear. Moreover it regarded its own status as respondent as dubious but indicated it intended to play a role as contradictor and to assist the Commission with submissions on the law. SafeWork did not intend to agitate Mr Bryant's position or that of any particular worker. 7. Boland AJ undertook conciliation between the parties (including Mr Bryant) but concluded conciliation was not successful. The matter was then allocated to me for hearing. 8. Since filing the application RFS has engaged in discussions with the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA) and the NSW Rural Fire Service Association Incorporated (RFSA) representing, respectively, employees and volunteer staff engaged by the applicant. I should note that Mr Bryant disputes that the RFSA represents the volunteers at least in relation to the issue of the formation of work groups. 9. In light of these discussions the applicant has applied on various occasions for adjournments of the application. Safework has been supportive of the discussions taking place and has not opposed the adjournments. Mr Bryant on the other hand has sought to argue that the application should be heard or dismissed. RFS disputes Mr Bryant's standing to be involved in the proceedings or to make such applications. The Motion 1. Mr Bryant has filed a Notice of Motion (the motion) by which he seeks orders: 1. that the application be listed for hearing and determination at the Commission's earliest convenience; 2. in the alternative, that the application be dismissed; and 3. that he be granted the status of intervener in the proceedings. 1. Although the third order sought by Mr Bryant appears confined on its face to the status of intervener, the first two orders sought, and his submissions, make clear that he seeks to participate as a party to the proceedings. 2. This decision is confined to the resolution of the questions raised by the third order sought. Evidence 1. An affidavit of Mr Bryant was read. He was not required for cross examination. RFS made clear it did not necessarily accept the accuracy of all matters set out in the affidavit but indicated it did not wish to challenge it for the purposes of the motion. It sought to reserve its position should the affidavit be relied upon in another context. 2. The evidence of Mr Bryant included a summary of his qualifications and his reasons for his involvement in the matter. He was concerned that the volunteer members of the RFS had no recognised organisation to represent them in industrial matters. Annexed to his affidavit was a policy statement of the RFSA dated 17 May 2014 entitled "RFSA Advocacy Support". The policy statement is introduced as follows: Policy Statement To assist in resolving grievances, as defined in Service Standard 1.1.3, the Association will upon request act as an advocate on behalf of the grievant or respondent. 1. The Service Standard referred to was not in evidence. 2. Under the heading "Background" in the policy statement, is a statement to the effect that the Association does not become involved in matters of an industrial nature. I understood Mr Bryant relied on this to indicate that the RFSA would not undertake a role in these proceedings and did not have a role representing volunteers in the negotiations with the RFS concerning the establishment of workgroups. Those conclusions do not seem to me to follow from the document. First, because it is concerned with grievances. Second, because, although these proceedings are heard by an industrial tribunal and may have a broad connection to "industrial matters", the context does not indicate exclusion of a role in these proceedings or in the negotiations. Third, it seems inconsistent with the participation of the RFSA evidenced in the documents tendered by RFS. 3. The RFS tendered a bundle of documents summarising meetings and letters between the RFS and RFSA concerning the establishment of workgroups and related matters. The documents appeared to show a willingness on the part of RFSA to participate in the negotiations. 4. It was stated by Mr Bryant in his submissions and accepted by RFS that there were in excess of 70,000 workers in the RFS. Mr Bryant also indicated that the RFSA had approximately 37,000 members. The Legislative Framework 1. Relevant provisions of the Act include: 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by: … (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and … (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. 50 Request for election of health and safety representative A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for one or more health and safety representatives to represent workers who carry out work for the business or undertaking. 51 Determination of work groups (1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one or more work groups of workers. (2) The purpose of determining a work group is to facilitate the representation of workers in the work group by one or more health and safety representatives. (3) A work group may be determined for workers at one or more workplaces. 52 Negotiations for agreement for work group (1) A work group is to be determined by negotiation and agreement between: (a) the person conducting the business or undertaking, and (b) the workers who will form the work group or their representatives. (2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50. (3) The purpose of the negotiations is to determine: (a) the number and composition of work groups to be represented by health and safety representatives, and (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected, and (c) the workplace or workplaces to which the work groups will apply, and (d) the businesses or undertakings to which the work groups will apply. (4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (5) The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. Maximum penalty: (a) in the case of an individual—$10,000, or (b) in the case of a body corporate—$50,000. (6) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups. 54 Failure of negotiations (1) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section. (2) An inspector appointed under subsection (1) may decide: (a) the matters referred to in section 52 (3), or any of those matters which is the subject of the proposed variation (as the case requires), or (b) that work groups should not be determined or that the agreement should not be varied (as the case requires). (3) For the purposes of this section, there is a failure of negotiations if: (a) the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after: (i) a request is made under section 50, or (ii) a party to the agreement requests the variation of the agreement, or (b) agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence. (4) A decision under this section is taken to be an agreement under section 52. 223 Which decisions are reviewable (1) The following table sets out: (a) decisions made under this Act that are reviewable in accordance with this Part (reviewable decisions), and (b) who is eligible to apply for review of a reviewable decision (the eligible person). Item Provision under which reviewable decision is made Eligible person in relation to reviewable decision (1) A worker whose interests are affected by the decision or his or her representative appointed for the purpose of section 52 (1) (b). 1 Section 54 (2) (decision following failure to commence negotiations) (2) A person conducting a business or undertaking whose interests are affected by the decision. (3) A health and safety representative who represents a worker whose interests are affected by the decision. …. 224 Application for internal review (1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within: (a) the prescribed time after the day on which the decision first came to the eligible person's notice, or (b) such longer period as the regulator allows. (2) The application must be made in the manner and form required by the regulator. (3) For the purposes of this section, the prescribed time is: (a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser, and (b) in any other case, 14 days. 225 Internal reviewer (1) The regulator may appoint a person or body to review decisions on applications under this Division. (2) The person who made the decision cannot be an internal reviewer in relation to that decision. 226 Decision of internal reviewer (1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. (2) The decision may be: (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. (4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information. (5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. 227 Decision on internal review As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing: (a) the decision on the internal review, and (b) the reasons for the decision. 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. 1. Reviewable decisions and the persons eligible to apply for review are detailed in s 223 of the Act, the relevant part of which to this matter is set out above. There are in total 12 types of decision (apart from those prescribed in the regulations) which may be reviewed. This matter is concerned with a decision under s 54(2). As was submitted by SafeWork, it may be that the type of decision under review imports different considerations as to the nature of the review and who may be parties to such a review. I make clear that I have not attempted to answer those questions in respect of all reviewable decisions. 2. Relevant provisions of the Industrial Relations Act 1996 (NSW) (the IR Act) include: 146 General functions of Commission (1) The Commission has the following functions: (a) setting remuneration and other conditions of employment, (b) resolving industrial disputes, (c) hearing and determining other industrial matters, (d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister, (e) functions conferred on it by this or any other Act or law. (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. This subsection does not apply to proceedings before the Commission in Court Session that are criminal proceedings or that it determines are not appropriate. 151 Judicial members to constitute Commission in Court Session (1) The Commission in Court Session is the Commission constituted by one of the judicial members only for the purposes of exercising the functions that are conferred or imposed on the Commission in Court Session by or under this or any other Act or law. (2) This section does not prevent the Commission from being constituted by judicial members when not exercising those functions. 153 Jurisdiction of Commission in Court Session (1) The following functions of the Commission are to be exercised only by the Commission in Court Session: (a) proceedings for an offence taken before the Commission (including proceedings for contempt), (b) proceedings for declarations of right under section 154, (c) proceedings under Part 9 of Chapter 2 (Unfair contracts), (d) proceedings under section 139 (Contravention of dispute order), (e) proceedings under Parts 3, 4 and 5 of Chapter 5 (Registration and regulation of industrial organisations), other than Division 2 of Part 3 (Cancellation of registration) and Division 3 of Part 4 (Election of officers), (f) proceedings under Part 1 of Chapter 7 (Breach of industrial instruments), (g) proceedings for the recovery of money under Part 2 of Chapter 7 (other than small claims under section 380), (h) proceedings on a superannuation appeal under section 88 of the Superannuation Administration Act 1996, (i) (Repealed) (j) proceedings on an appeal or case stated from an Industrial Magistrate or any other court, (ja) proceedings under section 197B, (jb) proceedings under section 23A of the Transport Appeal Boards Act 1980, (k) any other proceedings that are, by this Act or any other Act, required to be taken before the Commission in Court Session. 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission: (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and (j) may, on its own initiative, inquire into any industrial matter. 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. Submissions 1. The parties filed written submissions and were heard in support of them. Mr Bryant's submissions 1. In short Mr Bryant submitted: In relation to the matter, I have researched the definition of Intervener. An individual who is not already a party to an existing lawsuit but who makes himself or herself a party either by joining with the plaintiff or uniting with the defendant in resistance of the plain-tiff's claims. In law, intervention is a procedure to allow a nonparty, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard. Background I believe the matter before the court is whether Safe Work's NSW decision to put aside an Inspectors decision was legal under the NSW WHS Act 2011 and NSW WHS Regulations 2011. The applicant, NSW Rural Fire Service (RFS) has asked the court for an external review of Safe Work NSW decision, under section 229(1) (b) of the WHS Act. My involvement in the matter was that I requested the determining of Workgroups and election of Health and Safety Representatives under section 50 WHS Act for the RFS as a whole. … I believe that my skills, knowledge and involvement in the matter before the court warrant recognition as an intervener. Work Safe NSW has no objection in my involvement. I was identified by the RFS in court documents as a respondent. Scope The scope of my involvement would be to advise the court about: Operations of the RFS. Training in the RFS. RFS WHS system. The number of workgroups and the election process. Information about representative bodies. To clarify matters before the court and prevent obfuscation in the matter 1. In his succinct oral submissions in support Mr Bryant said: I believe the meaning of the act here is that an issue resolution process should include an individual worker and be a party to that issue resolution. If that person is not a party to the matter then every aspect of the matter can be heard in detail. Going on from that I looked at why I need to be a respondent. I guess Rural Fire Service hasn't talked to volunteers yet about this matter which has been going on for two and a half years. RFS Submissions 1. RFS submitted that although Mr Bryant was a worker within the meaning of the Act his: status as a 'worker' does not operate to distinguish Mr Bryant from every other worker in RFS and/or entitle him to any greater rights to be represented in these proceedings. In other words, while Mr Bryant may have an interest in the outcome it is not a sufficient interest to entitle him to be joined either as a party or as an intervener to these proceedings. If Mr Bryant was given a right to participate as a party or intervenor then every other worker affected in the same way as a worker should be given the same right. Permitting every single worker the right to participate in either capacity is not consistent with the proper functioning of the IRC nor with the provisions of s163 of the IR Act. 1. Mr Hodgkinson SC, who appeared with Ms Thompson for RFS, drew attention to the statutory scheme and submitted that it should be construed in a manner "consistent with the language and purpose of all the provisions of the statute": citing Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475. The purpose of Part 5 of the Act, the applicant submitted, is to facilitate the election of HSRs (s 51(2)) by the determination of one or more workgroups (s 51(1)). HSRs are to be elected by members of the workgroup (s 62). RFS submits Mr Bryant's interest therefore is confined to his workgroup and is thus confined to the Cumberland District, the area in which he worked. Even in that context Mr Bryant would be but one of more than 900 volunteers and employed staff who work in that area. Mr Bryant's interest would be no different from each of those other volunteers and employed staff. 2. While it is clear that the Act confers certain rights on individual workers, the "real scheme" of the legislation is one of collective negotiation. Mr Hodgkinson submitted that the legislative scheme to be considered in this context included the IR Act. 3. RFS accepted that Mr Bryant is an "eligible person" within the meaning of s 223(1)(b) of the Act and had standing to seek a review of a decision made under s 54(2) of the Act, whether by way of an internal or an external review. That standing would however be confined to his area of interest. 4. The applicant submitted that s 229 is the only provision which deals with external review and does not provide much guidance as to the form of an external review. Mr Hodgkinson submitted the Act distinguishes between the Industrial Court of NSW (the Industrial Court) and the Industrial Relations Commission of NSW (the Commission). The power to hear category 3 offences, for example, is conferred on the Industrial Court; see s 229B (2)(b) and s 229B (6) of the Act. The reference to the Commission in s 229(1) must therefore refer to the Commission and not the Industrial Court. 5. The nature of the external review is then informed by the fact that it is to be conducted by the Commission. RFS notes that the Commission has wide powers and broad discretions in the way it exercises jurisdiction; s 163 of the IR Act. 6. That in turn has an impact on who may participate in proceedings before the Commission. RFS submitted: The authorities establish that the Commission has a broad discretion to grant an application to intervene. See Ambulance Service of NSW v HSU East and Re Laundry Employees (State) Award (No 2). In the appeal matter of Re Laundry Employees the Australian Chamber, a federally registered organisation, sought leave to appear as a party in State award proceedings for which it was not a registered body under the NSW Act. The Full Bench in upholding the decision made below not to allow the application for joinder considered the relevant principles at pages 99 – 100 as follows: "This involves firstly the question of whether they have sufficient interest therein in the sense of being directly or materially affected by any determination ……Secondly, the matter involves questions concerning the exercise by the Commission of its powers, functions and discretions in respect of the proper conduct of the proceedings before it…. An organisation which is registered under the NSW Act is vested with the statutory right to appear as a party principal representing the interests of its members in proceedings…… It must of course demonstrate in a particular case the organization and its members (or some) have a proper interest in the proceedings. Such an interest is self evident in a case where the proceedings concern an award which is, or would be, binding upon members of the organization. …… A similar position obtains in relation to persons other than organisations. In order to be a primary party to or be granted leave to intervene in the proceedings the person must establish, to the Commission's satisfaction, that it has sufficient interest in the proceedings, in the sense that it will be materially affected or bound by the outcome or such other sufficient interest to warrant is appearing in and being heard in the proceedings…. It follows that the determination of whether a person who claims to be a party to proceedings is such a party and should appear therein are matters within the discretion of the Commission, such discretion, of course, to be properly exercised having regard to the relevant criteria….. 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….." While the above case related to award proceedings the criteria applied by the Full Bench is relevant to the present application by Mr Bryant. Like award negotiations (and/or proceedings) the negotiations for HSRs and work groups envisaged in Part 5 of the Act operate to cover all persons who are 'workers'. As such s54 refers to 'worker representatives' and not to an individual worker who has no standing or endorsement to represent the interests of other workers. To allow Mr Bryant to be joined to these proceedings at this stage is to provide him with recognition as though he was an HSR, which he is not. (citations omitted) 1. The RFS submitted that Mr Bryant does not have sufficient interest, over and above other workers, to be joined as a party to an external review under s 229 of the Act, which is an administrative and not a judicial review. His interests, and those of other workers, are protected by their authorised representatives, the PSA and the RFSA. 2. The RFS submitted also that the rights of an intervener are limited and subject to the exercise of the Commission's discretion. 3. Further as to the nature of the review, RFS submitted it is an administrative or merits review citing the decision of Staff J in 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 (AFMEPKIU Case). In further written submissions filed by leave of the Commission RFS developed the concept of a merits review. Referring to "Notes" dealing with the concept of "review" in the Administrative Appeals Tribunal, Mr Hodgkinson submitted: 1. A merits review differs from a judicial review in both procedure and remedies. A merits review is characterised by a power to vary a decision. 2. In a merits review it is the decision which is reviewed not the decision maker's reasons. 3. The question before the tribunal conducting a merit review is whether the decision is the correct or preferable decision on the material before the tribunal. 4. The tribunal conducting the review stands in the shoes of the decision maker. 5. A key aspect of a merit review is that the tribunal looks at the matter anew, according to the facts and circumstances as they exist at the date of the review. 6. The ability of the tribunal to receive and act on new material is central to its capacity to make the "correct or preferable decision". 7. The statute that creates the tribunal will be the first point of reference in ascertaining procedure. 1. SafeWork is an adequate contradictor for the proceedings because Mr Bryant's role in the internal review was simply to provide information. SafeWork can provide that information. It does not have to actively "justify" the decision it made. 2. The procedure on external review in other jurisdictions is of no assistance because the legislation is significantly different. SafeWork Submissions 1. SafeWork submitted that there is little guidance to be found in the express terms of the Act or the IR Act as to who should properly be a party to an external review. There is no express power to grant intervention (other than s 167 of the IR Act which does not apply in this context). 2. Mr Magee, of counsel, who appeared for SafeWork submitted the Commission has a broad discretion to grant an application to intervene. As to the applicable principles he submitted: The following principles may be drawn from the authorities in respect to the test to be applied in granting a person leave to intervene: (a) whether a person is to be granted leave to intervene is a matter that lies within the discretion of the tribunal; (b) where "the justice of the case warrants" leave to intervene being granted (in re Plumbers and Gasfitters (State) Conciliation Committee [1936] AR (NSW) 341 at 346; (c) where as a "protective step" leave to intervention be granted to ensure that the interests that the intervener has in the case is fully appreciated and adequately protected and is not prejudiced or placed in jeopardy (in re Special Constables (Police Department) Award [1956] AR (NSW) 880 at 885; (d) where a person has sufficient interest in the proceedings in the sense that it will be materially affected or bound by the outcome or such other sufficient interest to warrant its appearing in and being heard in the proceedings (re Laundry Employees (State) Award (No.2) (1990) 49 IR 91 at 100); (e) intervention in a proceeding should be treated as a protective step to ensure that the interest that the intervener has in the case is fully appreciated and adequately protected and is not prejudiced or placed in jeopardy. 1. SafeWork, he submitted, was cognisant of its role as a decision maker and the need to maintain the appearance of impartiality; citing R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 and Police Integrity Commission v Shaw (2006) 66 NSWLR 446. Although Hardiman was a case involving judicial review, SafeWork submitted the exercise of its powers under s 54(2) and on internal review required it to remain impartial and to maintain the appearance of impartiality. Its role in the review was to make submissions on interpretation of the legislation and provide assistance to the Commission in respect of the questions for determination by it. It is not a proper contradictor. 2. SafeWork did not oppose Mr Bryant's application for leave to intervene. The Commission should take into account the following factors: 1. Mr Bryant was: 1. the person who made the initial request under s 50; 2. The person who made the request under s 54 for the appointment of an inspector; and 3. the applicant for an internal review under s 224. 1. it is apparent that it is a matter of considerable contention whether the existing consultative arrangements within the RFS are the most effective method of ensuring representation in matters related to workplace health. 2. RFS workers would be potentially adversely affected should the application succeed and it follows that Mr Bryant would be potentially adversely affected. 3. There is no party presently representing the interests of workers or to advance material contrary to the RFS contentions or material. 4. In the circumstances it would be an appropriate protective step to grant Mr Bryant leave to intervene. 5. It would be incongruous for RFS to be able to call evidence and make submissions in relation to the substantive issues but exclude the initial mover in the underlying application. 1. As an intervener does not have the same rights as a party and, given it is arguable that Mr Bryant has a "sufficient" or "real" connection to the matters under review there is material upon which it is open to conclude that Mr Bryant should be joined as a party. 2. SafeWork contended that the external review is a "merits review" on the proper construction of s 229 of the Act. That meant the Commission should hear the matter afresh. 3. Mr Magee drew attention to the AFMEPKIU case in support of that proposition. He also submitted that such a construction is also supported by the approach in other jurisdictions. The legislation in Queensland and Northern Territory each expressly provides that the review is by way of rehearing in the sense of a hearing de novo. Consideration 1. I should say at the outset that, notwithstanding the object of national harmonisation of laws found in s 3(1)(h) of the Act, I do not consider the legislation in another State or Territory to be of assistance in this case. I accept the submission of RFS that the form of the legislation differs significantly. 2. The legislation under consideration raises some perplexing questions. In summary, a worker (including a volunteer) may ask the "person conducting a business or undertaking" (PCBU) to facilitate the conduct of an election for one or more health and safety representatives (HSRs) (s 50 of the Act). The PCBU must (s 51) then facilitate the determination of one or more workgroups by negotiation (s 52) with the workers who will form the work group or their representatives. I note that representative is a defined term and includes registered industrial organisations of employees; see s 4 of the Act – definitions of "representative" and "union". 3. There is an immediate conundrum in that the negotiations are to take place with the members of a group (or their representatives) about the establishment of that group. In a small organisation that may present few difficulties. In an organisation of more than 70,000 workers, such as the RFS it is clearly a different and more complex question. With whom is the PCBU meant to negotiate? The workers who must be party to the negotiations are those who will form the group the identification of which is the subject of the negotiations. The circularity is obvious. Fortunately I do not need to resolve that question in this case. 4. I pause here to note I accept Mr Hodgkinson's submission that Part 5 of the Act has a collective focus. It is about the representation of groups of workers. All workers in the group have an equivalent interest. That is not to deny that, notwithstanding this collective focus, individual workers are given specific standing to initiate various actions. Making the request under s 50 is an example. 5. If the negotiations fail, itself a question of fact simplified in this case by the passing of the prescribed time, a person who is or would be a party to the negotiations may apply to the regulator (in this case SafeWork) to appoint an inspector. That raises the question of who should be party to the negotiations and raises the circularity question once more. Again, fortunately, the issue doesn't arise in this case. It has been accepted that Mr Bryant was eligible to apply. I should observe however that it may have been another worker who made the application. There is no requirement of continuity between the person who makes the request under s 50 and the person who makes the request under s 54(1). That reflects the equivalence of interest among workers. 6. The inspector "may" decide (s 54(2)) each of the matters required to be determined by the negotiations (s 53(3)) or that workgroups should not be determined. There is no express statement in the legislation as to how the inspector is to conduct the review. An indication is given by the Act's stipulation that this step is to be undertaken by an "inspector". "Inspector" is a defined term and "means an inspector appointed under Part 9" of the Act. Under Part 9 inspectors are granted a wide range of powers (see Division 3 and especially Subdivisions 1 and 4) for the purposes of undertaking their functions (see Part 9 Division 2). 7. Presumably the inspector is intended to use the investigative powers conferred upon inspectors by the Act to gather necessary information for the determination of the questions raised. That indicates the process is inquisitorial rather than arbitral. The absence of any stipulation as to any person's right to present material or make submissions reinforces that conclusion. 8. An eligible person may apply to the regulator (s 224(1)) for a review of the inspector's decision. The eligible persons include a worker whose interests are affected by the decision (s 223(1)(b) Item 1)). This is another example of the standing of individuals to initiate action. Of course the person needs to be one whose interests are affected. Mr Bryant made the application in this case and there is no challenge to his standing to do so. Again I note, there is no requirement of continuity between the persons eligible to apply under s 50, s 54(1), or s 224. That, in my view, is significant. Standing to initiate later action is not dependent on earlier action. Neither is the standing of a person to be involved in a later step enhanced (at least expressly) by involvement at an earlier stage. In other words the mere fact that a person has initiated an earlier step does not alter their status at later stages of the process. 9. The regulator is empowered to appoint (s 225) a person or body to be the internal reviewer. Perhaps in this context "may" means "must" but I have heard no argument on that point. I observe however, that the regulator is not obliged itself to conduct the review, nor is there any requirement, apart from an inference which might arise from the use of the word "internal", that the reviewer be a person employed by, or otherwise associated with, the regulator. That has implications for Mr Magee's submissions about impartiality and SafeWork's capacity to be a proper contradictor. The legislation provides a mechanism by which the impartiality of the reviewer may be preserved by permitting that person to be independent of the regulator. 10. The internal reviewer is empowered to confirm, vary, or set aside the reviewable decision and substitute a decision the reviewer considers appropriate (s 226(2)). The conclusion one would draw from those powers is that the reviewer is conducting a merits review. In my opinion the reviewer is required to review the decision, and not necessarily the reasons for it, to determine what is the "right or preferable" determination. 11. The only indications of the internal reviewer's sources of information are found in s 226(3) and s 226(4). It is apparent the reviewer may seek further information from the applicant. The inference is the applicant has already provided some information. I note that s 224(2) permits the regulator to require an application for internal review be made in a particular "manner and form" but nothing further is said and the Work Health and Safety Regulation 2011 (NSW) is silent on the matter. An inference is also open that the reviewer will have the benefit of the information gathered by the inspector. There is no indication of any other power for the internal reviewer to obtain information including from other persons "whose interests are affected" by the decision. As I have noted the reviewer does not have to be the regulator or an inspector so there is no inference that the person conducting the review has other information gathering powers. 12. Another notable feature of the review is that the reviewer is obliged to provide (s 227) the decision and reasons (my emphasis) only to the applicant. 13. Notwithstanding that the applicant is the only person required to be provided with the decision, provision is made for external review (s 229) by the Commission. The persons eligible to apply for such a review are the same as those eligible to apply for an internal review. Again there is no requirement of continuity in relation to workers. In this case the PCBU, i.e. RFS, made the application but Mr Hodgkinson accepted, albeit cautiously, that Mr Bryant would have been eligible to apply for an external review had he so wished. 14. The immediate reaction to that submission is that the applicant would be a "party" to the external review process. Indeed Mr Hodgkinson submitted the applicant is the only party as of right. Even the PCBU would need to apply to be heard on the external review if it were not the applicant. The following exchange occurred between the Commission and Senior Counsel: HIS HONOUR: 229. I take you back. When you go back to 223, a reviewable decision is a decision under s 54(2). HODGKINSON: Yes. HIS HONOUR: That allows a worker, whose interests are affected by the decision, to make the application for the review. So, Mr Bryant is a person. It could be another worker, it seems to me‑‑ HODGKINSON: I agree with that. I accept that. HIS HONOUR: ‑‑who could make that application not necessarily Mr Bryant, he might be exhausted by all his effort at the internal review and the original application, but another colleague says, I will make it. I'm applying for an external review. I'm a worker in this group, whatever the group is, and I want an external review of that decision. HODGKINSON: Yes. HIS HONOUR: That would make him a party to the proceedings, would it not? HODGKINSON: No. HIS HONOUR: Wouldn't that make him party to the external review proceedings as the applicant of the external review? If you want some time to think about it, I will give it to you because it seems to be the key question. Mr Bryant is here, but there is a breakdown in that it could be someone else not Mr Bryant. HODGKINSON: Yes. I understand your Honour's point. HIS HONOUR: Clearly, an individual can be a party, as an applicant. In that case, is the discrimine, amongst all of those workers, the involvement of the individual worker in the review process which has preceded? Does that involvement set an individual worker aside from the group? HODGKINSON: Your Honour, I will need to consider it, because I need to take it back to the argument that I have already put to your Honour about trigger points. HIS HONOUR: Yes ….. HODGKINSON: Now that leaves me with the other perplexing question that your Honour asked me ‑ that is, if an applicant for external review, what's their status. Your Honour didn't put it as ineloquently as that. Your Honour, what I want to suggest is this. That it is only the applicant, literally only the applicant, for external review that has, as a consequence of that application, any right in relation to the external review. Let me give your Honour the example as to why that must be the case. If a worker asks the question and the PCBU engages in negotiations which fail, and the PCBU says: Well, we don't think that was right. We want a review. We want an inspector appointed. An inspector says something that the PCBU is not happy with. It applies for an internal review. The internal review comes down. The PCBU is not happy and it then becomes an applicant for external review. At no point would it be suggested that a worker or workers, [are] parties to the proceedings that were generated by the application for external review, you would have no way of choosing who they were. You would have no capacity to say, well, these people will be parties. So that, in that way, because the provision has to operate, s 229 operates for all its circumstances, in that way it is only the party that actually makes the application for external review that becomes a party as a consequence of that application. Now your Honour, I understand that would not normally be a submission that one could make about this type of proceeding, but it is the nature of what is being discussed, the formulation of work groups, and it's the collective nature of the requirements within the Act, which we have already discussed and I don't intend going back over, that operate in that way. Because there would be circumstances where these triggers, as I put them, a particular individual, or a PCBU, or an HSR will have a status at least to operate the trigger point or a status to provide information, but that changes and it changes because of the nature of what you are dealing with. In my example, it is really no different to what we have got here. You have got a person asking the question. You have got an application or an appointment of an inspector who failed negotiations. You have got an internal review and then you have got another party (in this case, the PCBU) applying for the external review. At the scheme of this Act, those people have the trigger points issues, but they gain a status beyond that which is given to them by the provisions, in any event, through involvement, in part, of that process because it couldn't be different than the person who asked the question and the person who applied for an internal review. There is no basis in this Act to define a difference between. They are a worker. That's it. That's the qualification. A worker who is affected by that decision. In that way, your Honour, as I put, the only party then is the applicant party. …. HIS HONOUR: Taking your example in the alternative, you say only the applicant is entitled. That means a worker [applies] the PCBU is not entitled. HODGKINSON: That may be ‑ what the PCBU would rely upon is the fact that the PCBU ‑ one is clearly affected by the decision, and two, has other roles and trigger point roles throughout the process, and may have to make an application to be heard. That may be the case. 1. Mr Hodgkinson's contention about the abnormality of his submission reflects the fact that the Commission is nominated to conduct the external review and the Commission's processes usually involve hearing parties in an arbitral context. If he is correct, and the applicant is the only party, there is a substantial change to that process which is unremarked in the legislation. As I have noted in his further written submissions Mr Hodgkinson submitted the nature of the review was a "merits" review from which I imply there would be more than one party. 2. The time limit for making the application to the commission is prescribed in s 229 (2). It is noteworthy that time runs from when the decision comes "to the applicant's notice" emphasising that the internal review decision need not necessarily be provided to persons eligible to apply for external review. That is further supported by the time being extended if the Commission directs the regulator to provide the "eligible person with a statement of reasons". The presumption is, consistent with the obligations in s 227, that the reasons are not necessarily to be made known to eligible persons. 3. There is a second important point to note about the requirement to give reasons. Reasons are not required before or to facilitate an internal review. They are required before an external review of a decision on an internal review. That may have implications for the nature of the review by the Commission. 4. As for the internal review, the Act does not prescribe the process of review before the Commission. Nor does it prescribe the information to be provided to the Commission. No doubt that is because the Commission has established processes for determination of matters which come before it. The Commission also has an array of powers in relation to information gathering and presentation. 5. I pause in my review of the legislative scheme to note that I accept Mr Hodgkinson's submission that the Act clearly intends that the review is to be conducted by the Commission not by the Industrial Court. There was no argument or suggestion to the contrary. I also accept his submission that there is a distinction between judicial review and administrative review. That is a slightly different proposition from a "merits" review which in my opinion may be either judicial or administrative. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Gleeson CJ, Gaudron and Hayne JJ commented on the various types of judicial review. They said at [12]-[14]; [12] It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance. [13] If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing. [14] Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. (footnotes omitted) 1. Thus an appeal by way of a hearing de novo is a "merits" review whether undertaken by a court or by an administrative tribunal. So the nature of these proceedings is not determined by the conclusion that it is to be conducted by the Commission rather than the Industrial Court. I accept, though, it may be a factor pointing to the nature of the review. 2. I return then to the legislative scheme. 3. The Commission is empowered to confirm, vary or revoke the decision concerned. I note the distinction between s 226(2) and s 229(4). The internal reviewer is empowered to set aside the decision (which equates to revocation) and substitute an appropriate decision. That last aspect is not expressly included in s 229(4). A question arises whether that is an important distinction. It may be that it is an indication that the Commission is not intended to substitute what it considers is the right, preferable or more appropriate decision. But that is inconsistent with the power to vary. It seems odd that the Commission could vary the decision and yet not substitute its conclusion as to what is preferable. What otherwise is the point of variation? 4. The Commission is, generally speaking, an arbitral tribunal. The general functions of the Commission specified in s 146 of the IR Act, for the most part, are undertaken by the Commission hearing the parties and, if conciliation is not successful, determining the issues which divide them. It is true that the Commission does have an inquisitorial role under s 146(d) but that is an exceptional role undertaken on reference from the Minister. The Commission of course has power to compel attendance and production of evidence but again that is usually exercised in an arbitral context with parties presenting their respective cases - as envisaged in s 162(2)(c) of the IR Act. Similarly the Commission's capacity to move on its own initiative to inquire into any industrial matter (s 162(2)(j)) is a facilitative power to resolve industrial issues. 5. The Commission's decision on the review would also be subject to appeal by leave of a Full Bench. An appeal is not available from a report on a Ministerial reference. That is another indication that the nature of the review is a merits review intended to be undertaken in an arbitral not an inquisitorial context. 6. Looked at in this context it seems to me that the legislature intends that the Commission will undertake a merits review. The fact that written reasons are required to be provided to the applicant following the internal review is not enough by itself to suggest that the review by the Commission is to be directed to simply the identification and correction of error. The legislation shows, through the multi-level process for the determination of work groups, an evident importance which suggests that the review by the Commission is intended to permit the arrival at a final and correct result. Either at first instance or on appeal in an appropriate case. 7. I am reinforced in this view by the conclusion of Staff J in the AFMEPKIU case. His Honour was considering a decision of a different kind however he concluded at [50]: The 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. 1. The inferences that I draw from this legislative scheme, looking as a cohesive unit and doing my best "to give effect to the purpose and language of the provisions", see Project Blue Sky INC v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [70], are: 1. The purpose of Part 5 of the Act is to determine whether and, if so, what work groups should be established for a business or undertaking. 2. The purpose of work groups is to facilitate the election of HSRs. 3. HSRs can undertake an important role in fulfilling the objects of the Act; in particular s 3(1)(c). 4. There is therefore a real public interest in ensuring that, if HSRs are to be elected, their election should be directed to fulfilling the objects of the Act. 5. The process of determining work groups is based on collective negotiation and all workers in that group have an equal interest. They also have an equal interest in the electoral process for HSRs. 6. Notwithstanding this collective element, individual workers are given standing to take actions to ensure the proper, correct or appropriate decision is made. Standing is not expressly enhanced by reason of a worker taking an earlier step. 7. The decision by the inspector is an administrative determination taken when the parties to the negotiations cannot agree. The initiator of this step, whether a worker or otherwise has no different standing to any other interested person. 8. The internal review is an administrative merits review of the inspector's decision based on the material gathered by the inspector as suggested by: 1. The absence of reasons by the inspector; 2. The absence of any information gathering powers peculiar to the internal reviewer other than the ability to request further information from the applicant; and 3. The decision making powers of the internal reviewer. 1. The external review is an administrative merits review to be undertaken following the normal arbitral processes of the Commission. While the reasons for decision on the internal review would be relevant and accorded due weight the Commission is intended to make a decision based on all the material before it at the date of the decision. 1. The next question is what implications these conclusions have for Mr Bryant's motion. Intervener or Party 1. I have earlier concluded that Part 5 of the Act has a collective focus but recognises the standing of individuals to take certain actions. I accept in this context Mr Hodgkinson's submissions about the relevance of the criteria for intervention or recognition as a party to award proceedings. The analogies to a case such as this are obvious. The system would be completely unworkable if tens, let alone thousands, of individual workers sought to be heard on the basis of their interest as workers affected by the decision. Does Mr Bryant have a demonstrable "real and sufficient interest" to be involved in these proceedings? And if so in what capacity? 2. I note that Mr Bryant does not purport to represent other workers. He therefore seeks to participate as an individual "worker". That in my view would not be sufficient to justify intervention. I accept that, for the following reasons outlined by Mr Magee, he has a sufficient interest to be recognised at least as an intervener. In particular because: 1. Mr Bryant was: 1. the person who made the initial request under s 50; 2. the person who made the request under s 54 for the appointment of an inspector; and 3. the applicant for an internal review under s 224. 1. RFS workers would be potentially adversely affected should the application succeed and it follows that Mr Bryant would be potentially adversely affected. 2. There is no party presently representing the interests of workers or to advance material contrary to the RFS contentions or material. 3. In the circumstances it would be an appropriate protective step to grant Mr Bryant leave to intervene. 1. I have given particular weight to points 1 and 3 in coming to my view. 2. I have earlier recorded a discussion with Mr Hodgkinson about Mr Bryant's potential status as a party. Mr Magee submitted as I have earlier noted that it would be incongruous to allow RFS to appear, call evidence and make submissions but exclude the initial mover in the underlying application. There is much to commend that position. But in my view the legislative scheme mitigates against it. As I have noted there is no necessary continuity between ss 50, 54, 224 and 229. On a simple application of Mr Magee's submission there would be potential for several (not necessarily limited to four) workers to participate. In my view there has to be something more to justify participation as a respondent. The position may well be different were Mr Bryant the applicant. That characteristic by itself would be likely to render his interest "real and sufficient". 3. As I have noted, I have given particular weight to the absence of a party representing the interests of workers. Should that position change, and an organisation or person with authority to represent the class of workers involved seek to participate, it may be appropriate to review Mr Bryant's position. 4. I conclude that Mr Bryant should be given leave to intervene. That intervention is intended to allow him to call evidence, cross-examine witnesses and make submissions. The extent to which these matters can be undertaken continues, of course, to be under the control of the Commission's discretion. SafeWork 1. I have not had argument on the status of SafeWork beyond the brief points as to whether it is a proper contradictor in the context of whether Mr Bryant's motion should be allowed. It is inappropriate therefore to express any concluded view about its role in the proceedings. Order 1. I order that Shane Bryant be granted leave to intervene in matter No IRC 737 of 2014, 33543 of 2016. ******* 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: 05 May 2016