Industrial Relations Commission New South Wales Medium Neutral Citation: Mark Rolph v SafeWork NSW and Anor [2019] NSWIRComm 1043 Hearing dates: 1 May 2019 Date of orders: 09 July 2019 Decision date: 09 July 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The decision on internal review is confirmed Catchwords: WORKPLACE HEALTH AND SAFETY – application for external review – determination of work groups – whether work groups should be subject to geographical restriction – mobility of workforce – uniqueness of risks across network – balance of considerations Legislation Cited: Industrial Relations Act 1996 (NSW) s 162, 163 Work Health and Safety Act 2011 (NSW) s 3, 54, Pt 12 Div 1, s 223, 224, 225, 226, 227, 229 Work Health and Safety Regulation 2017 (NSW) cl 16, 17 Cases Cited: NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 R v Australian Broadcasting Tribunal ex parte Hardiman [1980] HCA 13 Sydney Trains v Safework NSW [2017] NSWIRComm 1009 Category: Principal judgment Parties: Mark Rolph (Applicant) SafeWork NSW (Respondent) Sydney Trains (Intervener) Representation: Counsel: M McAuliffe (Applicant) C Magee (Respondent) P Barry (Intervener) Solicitors: Government and Corporate Services, Department of Finance, Services and Innovation (Respondent) McCullough Robertson (Intervener) File Number(s): 2018/00263095 Judgment 1. Mr Mark Rolph, the applicant, is employed by Sydney Trains. On 27 August 2018 Mr Rolph filed an application ("Application") pursuant to s 229 of the Work Health and Safety Act 2011 ("Act"), seeking an external review of a decision made by SafeWork NSW under s 54(2) of the Act regarding the formation and organisation of work groups at Sydney Trains. These proceedings 1. The Application named SafeWork NSW as the respondent. On 28 September 2018 Sydney Trains filed a notice of motion seeking leave to intervene as a party to the proceedings. There was no opposition to that motion and on 2 October 2018 Commissioner Constant ordered that Sydney Trains be a party to the proceedings as an intervener with the ability to call evidence, cross-examine witnesses and make submissions. 2. SafeWork NSW did not take an active role as a "contradictor" in these proceedings. It submitted that, consistent with the principles in R v Australian Broadcasting Tribunal ex parte Hardiman [1980] HCA 13, an administrative decision maker must maintain impartiality and the appearance of impartiality in proceedings challenging its decision. The burden of the contradicting case was borne by Sydney Trains. 3. Mr Rolph read the following: 1. an affidavit he had sworn on 21 March 2019; 2. an affidavit of Bronwyn Kelly, a Turnaround Cleaner employed by Sydney Trains, sworn on 21 March 2019; 3. an affidavit of Todd Dowling, a Station Duty Manager employed by Sydney Trains, sworn on 12 February 2019; and 4. an affidavit of Helen Bellette, an organiser employed by the Australian Rail, Tram and Bus Industry Union (NSW Branch), sworn on 22 March 2019. 1. Mr Rolph gave some limited additional evidence in chief and was cross-examined. Ms Bellette also gave short additional evidence in chief, but neither she nor any of the other witnesses called by Mr Rolph was required for cross-examination. 2. Sydney Trains read the following: 1. a statement by Chris Walsh, the Deputy Executive Director – Customer Service for Sydney Trains, dated 12 April 2019; and 2. a statement by Andrew Barry, Acting Team Manager Safety Delivery for Sydney Trains, dated 12 April 2019. Factual background 1. Mr Rolph has been employed by Sydney Trains and its predecessors since 1992. Since January 2015 he has been an elected Health and Safety Representative ("HSR"). 2. Sydney Trains operates trains across metropolitan Sydney. It has what it describes as a Customer Service division, which in turn includes a sub-division known as Customer Delivery ("Division"). These proceedings relate to the Division. 3. There are approximately 1,794 relevant employees in the Division. Collectively they have been described in these proceedings as "Station Workers". 4. The current work health and safety ("WHS") consultative structure in the Division was established in 2014. The process adopted, and the resultant structure, were summarised in Sydney Trains' submissions as follows: "9. In 2014 Sydney Trains consulted with Station Workers in CD [Customer Delivery] to negotiate a work group determination of those Station Workers in anticipation of HSR elections. Sydney Trains considered two elements in its determination process. The first was work classification. The second, geographical boundaries. 10. Work classification of Station Workers in CD were categorised as follows: (a) Wages Station Workers; (b) Salary Station Workers; and (c) Cleaners Station Workers. … 13. Once the work classification was determined, Sydney Trains then considered the second element of grouping its Station Workers' work groups, namely geographical boundaries. 14. First, within CD, Sydney Trains formed 14 electoral areas for the elections of HSRs. These electoral areas across CD meant there was an even distribution of HSR candidates capable of being elected to represent Station Workers across the CD network. 15. In January 2015 the Australian Electoral Commission (AEC) held elections of HSRs in each of the three work classifications in each of the 14 electoral areas. 16. After the election of HSRs in CD, those 14 electoral areas were combined to create six geographical boundaries across the CD network. Elected HSRs would then represent their relevant Station Workers within a geographical boundary where their electoral area existed. 17. In larger geographical boundaries greater numbers of HSRs and Deputy HSRs were elected. For example in geographical boundary area 3 (North Sydney, Central and Bondi Junction) there were (and are) 11 Wages HSRs and 11 Wages Deputy HSRs. This compared to geographical boundary area 6 (Erskineville to Waterfall/Cronulla) which had (and has) 3 Wages HSRs and 3 Wages Deputy HSRs. 18. The election resulted in a consultation, representation and participation structure in CD which contained 56 HSRs and 56 Deputy HSRs across the six geographical boundaries in the following work classifications: (a) 31 HSRs and 31 Deputy HSRs from the Wages Station Workers classification; (b) 18 HSRs and 18 Deputy HSRs from the Salary Station Workers classification; and (c) 7 HSRs and 7 Deputy HSRs from the Cleaners Station Workers classification. 19. The overall determination of work groups in CD, when combining work classification and geographical boundaries, resulted in: (a) six geographical boundaries with 18 work groups across those geographical boundaries; (b) covering each work classification in those work groups; and (c) a combined total of 112 HSRs and Deputy HSRs representing Station Workers' health and safety interests. 20. In addition, Sydney Trains also implemented a structure for vertical consultation between Station Workers and management in CD. This structure forms part of Sydney Trains' consultation process in CD and is made up of a three tiered approach: (a) Tier 1 - Local Issue Resolution Forum (LIRF); (b) Tier 2 - Divisional Forum (DF); and (c) Tler 3 -Chairpersons' Forum (CF). 21. The Tier 1 LIRF comprises all HSRs within each geographical boundary. The LIRF in each geographical boundary meets monthly. CD management also attend to support the LIRF. Health and safety matters local to each geographical boundary are addressed at the LIRF. 22. The Tier 2 DF is a forum that represents the three work classifications. One HSR from each of the three work classifications and from each of the six geographical boundaries represent their work groups at this Tier 2 forum. CD Management also attend to support the DF. The DF meets every two months. 23. At the Tier 2 DF unresolved Tier 1 issues are addressed and resolved, new safety procedures and [policies] are reviewed, risk reviews conducted and injury performance is reviewed. 24. At Tier 3 CF level three HSR representatives (from those attending the Tier 2 forum) are appointed to this forum. Each HSR is chosen from each work classification and represents all those Station Workers of that work classification in all 18 work groups across the geographical boundaries. Senior CD management also attend. The Tier 3 CF is held every six months. 25. At the Tier 3 CF unresolved issues and/or actions at Tier 2 level are addressed and an overview of health and safety programs current and future are discussed. 26. The above 2014 Sydney Trains CD work groups determination has been in effect since 2015." (Emphasis in original, footnotes omitted) 1. The only substantial factual dispute arising from this summary is whether the structure resulted in 18 workgroups as asserted by Sydney Trains, or just three derived from the work classifications, as Mr Rolph contended. I return to this at [58] and following below. 2. Primarily for the sake of context, it is useful to outline in broad terms the work performed in each of the work classifications. Mr Rolph is employed in the "Wages" classification. In his affidavit he described his role as performing operational duties at Parramatta Station such as the safe dispatch of a train, utilising a flag and whistle, boarding assistance for less mobile passengers, attending gate lines and providing general guidance to passengers who require assistance. 3. Ms Kelly is in the "Cleaner" work classification. In her affidavit she described her role as cleaning a train after it pulls into the platform. She provides customer service as required. She stated that other cleaners perform station cleaning duties and their primary role is to focus on the concourse, platforms, toilets and crew room. 4. Mr Dowling is in the "Salary" work classification. In his affidavit he stated that Salary staff members might be described as station managers. They manage other staff at a station and assist in the day-to-day functioning of a particular station. His duties include conducting station inspections and security monitoring of the station. When required he assists with safety cleaning, barrier duty, customer service and boarding assistance. 5. In February 2018, in part due to a request from Mr Rolph, Sydney Trains began the negotiation of work groups with the Station Workers. During this process, on 27 March 2018 Mr Rolph provided Sydney Trains with a proposal regarding the Wages work group safety consultation structure. That proposal was the subject of consultation between Sydney Trains, Mr Rolph and others throughout April and May 2018. Although some elements of Mr Rolph's proposal seemed to have been adopted by Sydney trains, in broad terms his proposed structure was not accepted. 6. On 25 May 2018 Mr Walsh wrote to Mr Rolph and others to confirm that Sydney Trains proposed to adopt its preferred work group determination (including its preferred consultation arrangements). Sydney Trains' preferred position was in many respects the same as that established in 2014 in that: 1. the three work classifications would remain the same; 2. 14 electoral areas would again be created for HSR elections; 3. once HSR elections were completed, six geographical boundaries would again be created. However, those boundaries would vary from those currently in place to align with new "customer areas" that had been created by Sydney Trains since 2014; 4. the vertical consultation model would retain the same framework; and 5. despite a reduction in Station Workers, Sydney Trains would maintain its current number of 56 HSRs (being 18 Salary, 31 Wages and seven Cleaning) and 56 Deputy HSRs. 1. Sydney Trains also asserted that it had adopted certain proposals put during the consultation period, including that: 1. Tier 1 LIRF meeting agendas would allow all three work classifications designated time to discuss safety concerns relating to their work classification; 2. the Tier 2 DM would become the WHS Committee Meeting forum for Station Workers; and 3. the Tier 3 DF would become the Customer Service Executive Peak Safety Meeting forum. 1. On 25 May 2018 Mr Rolph made application to SafeWork NSW for the appointment of an Inspector pursuant to s 54 of the Act. 2. In a report dated 6 July 2018 Inspector Blume of SafeWork NSW determined that work groups ought to be formed as proposed by Sydney Trains. 3. On 25 July 2018 Mr Rolph sought an internal review of the Inspector's decision pursuant to s 224 of the Act. 4. In a letter to Mr Rolph dated 14 August 2018, Mr Jim Allison, Manager, Governance and Appeals Unit of SafeWork NSW confirmed the decision of Inspector Blume ("Decision"). 5. The Application was filed on 27 August 2018. Matter in contention 1. At the time of the hearing the differences between Mr Rolph and Sydney Trains had coalesced into a single question. Namely, whether geographical boundaries, as anticipated in [16(3)] above, should be used to determine the work groups. 2. The submissions filed for Mr Rolph stated the issue as follows: "36. The applicant requests a single variation to the inspector's determination. That is, that geographical boundaries should not be imposed upon the formation of work groups. It is submitted that the correct and preferable decision is that work groups should only be defined by classification of worker, namely, salary, wages and cleaning." Applicable legal principles 1. There is no contest between the parties as to the principles to apply in this matter. 2. In exercising its jurisdiction the Commission must have regard to the object of the Act, which is set out in s 3 in these terms: 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: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (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 (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, 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. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable. 1. The Application is made pursuant to s 229 of the Act. To properly understand the section it is necessary to place it in the context of Part 12 of the Act, which relevantly provides as follows: Part 12 Review of decisions Division 1 Reviewable decisions 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. … Division 2 Internal review 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. … Division 3 External review 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. It was not in dispute that the Decision was a "reviewable decision" or that Mr Rolph was an "eligible person" within the meaning of s 223, Item 1 of the Act. The Application was filed within 14 days of the Decision, as required under section 229(2)(b) of the Act. 2. The approach to be taken by the Commission when conducting an external review was described by Kite AJ (as the Chief Commissioner then was) in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 ("NSW Rural Fire Service") as follows: "67. 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? 68. 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. 69. 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. 70. 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. 71. 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. These passages, and in particular [68], make it clear that the normal arbitral processes of the Commission are to be followed, and that the Commission has available to it all the powers conferred on it under ss 162 and 163 of the Industrial Relations Act 1996 (NSW). This was confirmed also in Sydney Trains v Safework NSW [2017] NSWIRComm 1009 at [16] and [22] (Newall C). 2. As they will be necessary to a determination of these proceedings, it is convenient to note at this point the following provisions of the Work Health and Safety Regulation 2017 (NSW): 16 Negotiations for and determination of work groups Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that: (a) most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and (b) has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group. Note. Under the Act, a work group may be determined for workers at more than 1 workplace (section 51(3)) or for workers carrying out work for 2 or more persons conducting businesses or undertakings at 1 or more workplaces (Subdivision 3 of Division 3 of Part 5 of the Act). 17 Matters to be taken into account in negotiations For the purposes of sections 52(6) and 56(4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following: (a) the number of workers, (b) the views of workers in relation to the determination and variation of work groups, (c) the nature of each type of work carried out by the workers, (d) the number and grouping of workers who carry out the same or similar types of work, (e) the areas or places where each type of work is carried out, (f) the extent to which any worker must move from place to place while at work, (g) the diversity of workers and their work, (h) the nature of any hazards at the workplace or workplaces, (i) the nature of any risks to health and safety at the workplace or workplaces, (j) the nature of the engagement of each worker, for example as an employee or as a contractor, (k) the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term, (l) the times at which work is carried out, (m) any arrangements at the workplace or workplaces relating to overtime or shift work. Submissions 1. The submissions made on behalf of Mr Rolph included the following: "28. It is submitted that the station staff workforce is unique in terms of the dangers workers face. The mobility of the station staff workforce is a defining characteristic, in that nearly half of the workforce operates at varying locations around the network and are not based in a regular location. Adding to this mobility is the regular offering of overtime shifts at locations other than a worker's home station. … 37. The applicant's proposal would permit relief staff workers (which constitute a significant percentage of the workforce) who are elected as HSRs, to exercise their powers under the Act where they are working. It will also permit HSRs who are undertaking overtime duties to exercise their powers under the Act when they are working at a location that is not within the work group which elected them. It would be incongruent with the objects of the Act, particularly the requirements of ss 3(a)-(b) and (d)-(e) given the nature of the workforce, if an HSR is precluded from exercising their powers and functions simply because, as often occurs, they are rostered on as relief staff or performing overtime at a station outside the confines of the work group. 38. It is also important to note that limiting work groups by geographical boundaries will also deprive those workers who are not HSRs of their right to representation by an HSR. Given the relief staff statistics and the frequency of overtime shifts, it is and will inevitably continue to be common place for workers who are not HSR's to work outside of their workgroup. Those workers would not be able to seek the representation of an HSR in the location they are working. By way of example, if a relief staff member's home station is Parramatta and that staff member was rostered at Lidcombe Station, that shift would occur outside of that worker's work group. Therefore, they would not be permitted to engage an HSR at Lidcombe station (or within the workgroup that encompasses Lidcombe station) to represent their interests while they were at Lidcombe Station. This outcome is particularly problematic if the issue is specific to Lidcombe station and there is, at the time the issue arose, no relevant HSR present that that worker could turn to. The worker could not seek the representation of a worker from their home station as the issue is not related to that HSR's work group. The effect of this example is dictated by s 68(1)(a) of the Act which restricts the powers and functions of an HSR 'to represent the workers in the work group'. Similarly, s 69(1) states that 'A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group'. … 40. … (f) …The mobility of station staff is the subject of submissions above and is a principal basis upon which the applicant submits that Sydney Trains' proposal as endorsed by the Inspector and Internal Reviewer is not the correct and preferable decision in all of the circumstances." 1. Mr Rolph's submissions rest in part on the effect of s 69 of the Act. That section is in the following terms: 69 Powers and functions generally limited to the particular work group (1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group. (2) Subsection (1) does not apply if: (a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group, or (b) a member of another work group asks for the representative's assistance, and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable. (3) In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates. 1. The gravamen of Mr Rolph's submission is that since an HSR may only exercise powers and perform functions under the Act in respect of the work group for which they are the HSR, their utility and accessibility will be undermined if there is a geographical restriction on the work group. That is, as Sydney Trains has a mobile workforce there is a likelihood that HSRs will be required to work outside of the geographical boundary proposed by Sydney Trains for its work groups, during which time the HSRs will be unable to exercise their functions and powers under the Act. Removing such geographical restrictions will ensure that HSRs are accessible as required, wherever they happen to be working. 2. In this way, it is submitted, Mr Rolph's proposal better addresses the requirements of cl 16 of the Regulation by most effectively and conveniently enabling the interests of workers to be represented and making HSRs more readily accessible to each worker. 3. The submissions made on behalf of Sydney Trains included the following: "44. While all geographical boundaries have similar risks and hazards, there are also important and significant risks and hazards that are unique to each or a small number only. The difference in risks and hazards between the geographical boundaries range from proximity of schools to stations, bushfire danger, large scale construction in and around stations, very high and very low temperatures, isolated stations with reduced Station Workers, crushing and falls onto tracks, terrorism threats and wildlife on trainlines. 45. The existence of geographical boundaries which contain boundary based HSRs and Deputy HSRs liaising directly with boundary based Safety Professionals and boundary based Customer Area Managers ensures: (a) workers and HSRs within each geographical boundary know their Customer Area Managers and therefore can escalate and prioritise issues regarding WHS directly with Sydney Trains management based at or near their home station, and within their geographical boundary; (b) each Safety Professional sits on their local Tier 1 - LIRF for their respective geographical boundary. HSRs and workers within a geographical boundary are able to immediately, or very quickly, have direct access to the relevant Safety Professional within their geographical boundary; (c) Safety Professionals are aware of the hazards and risks in their geographical boundary, the controls to eliminate or minimise the risks in their local geographical boundary and monitor and review those controls for effectiveness within their geographical boundary; (d) safety reporting is conducted for stations and areas within geographical boundaries. Safety Professionals will report on lead and lag factors, such as worker or customer injury, for each geographical boundary at their local Tier 1 - LIRF. HSRs are then able to become familiar with local trends and local risks and are better able to read and understand safety reports; (e) where a worker raises a particular WHS issue which requires, or may require, a HSR to make enquiries at a workplace within a geographical boundary, a HSR based within the geographical boundary is more quickly able to attend the workplace, more readily available to identify the particular Sydney Trains management representative or relevant Safety Professional with whom to make that enquiry; (f) if an Inspector of SafeWork NSW attends a particular station, a HSR based within a particular geographical boundary within which that station sits is more readily available and physically able to attend that workplace at the time at which the SafeWork NSW Inspector is present; (c) if an interview concerning work health and safety is occurring between a worker and a SafeWork NSW Inspector or Sydney Trains, and that interview is occurring within a particular geographical boundary, a HSR within that geographical boundary is more readily able to attend to the workplace at which the interview is occurring; (d) where a particular WHS issue has a long history, for example a particular train station has asbestos within a heritage listed pan of the station, a HSR with experience working at or near that station within a geographical boundary is more conveniently able to assist in consultation regarding that issue; (e) travel times from one end of the Sydney Trains metropolitan network to the other can be long and extend up to 100 to 130 minutes. HSRs based within a particular geographical boundary are more easily transported between stations within their geographical boundary; and (f) HSRs with local knowledge of WHS risks and controls within a geographical boundary are better placed to prioritise and appropriately escalate WHS issues." (Emphasis in original) 1. Consistent with the observations made at [3] above, SafeWork NSW's submissions were limited to the interpretation of the legislation. It did not make any submissions as to the respective merits of the competing proposals regarding the formation of work groups within which HSRs operate. Consideration 1. Clauses 16 and 17 of the Regulation (reproduced at [31] above) largely frame these proceedings. Clause 16 articulates the objectives which a determination of work groups must aim to achieve. Clause 17 requires "all relevant matters" to be taken into account in making the determination, identifying thirteen matters in particular. Both of the clauses are expressed in mandatory terms. 2. The combined effect of cl 16 and 17 is that in the present matter the question for determination is, having regard to all relevant matters, including those listed in cl 17, which work group proposal best achieves the objectives of cl 16? 3. The arguments advanced by the parties in purported answer to this question involved two broad, but competing contentions. Mr Rolph contended that the mobility of the Sydney Trains workforce makes it imperative that HSRs be able to exercise their powers and functions under the Act regardless of where they happen to be working. The geographical constraint on the formation of work groups inappropriately restricts their ability to do so. 4. Sydney Trains contended that the risk profile across the rail network will vary, with each station, or at least each region, having its own unique characteristics. The more familiar an HSR is with these risks the better they will be able to represent the interests of the workers, which supports work groups being established along geographical as well as occupational lines. Mobility of workforce 1. While there was some common ground between the parties regarding the need for mobility in the workforce, there are some disagreement as to the nature and extent of that mobility. 2. In her affidavit Ms Bellette deposed that while Station Workers are employed at a "home station", her belief was that 45% of Station Workers are employed in a relief capacity. This was based on her analysis of a holiday roster from 2018. She further deposed that Sydney Trains cannot guarantee that relief staff will work at their home station as they are utilised across the Sydney Trains network. 3. Mr Rolph deposed in his affidavit that it is common for staff to be rostered at different locations across the rail network, especially for relief staff. However, under cross-examination he stated that he was only aware of one or two relief workers who work outside their boundary. 4. Ms Kelly deposed that she was aware of staff who work split shifts, with each shift being at a different station. 5. From his evidence, it does not appear that Mr Dowling regularly works outside his geographical boundary. Despite that, in his affidavit he offered the following view: "20. In my view, it is crucial for the workgroups to be network wide. This will permit an HSR to perform their role to enhance the safety of the workforce regardless of the location they are working a particular shift. This is [particularly] important given that so many employees work at different locations all the time, sometimes even in one shift. Our job can be very dangerous at times and every opportunity to enhance [safety] should be taken." 1. Each of Mr Rolph, Ms Kelly and Mr Walsh gave evidence that overtime shifts are routinely offered to Station Workers, which can be undertaken at locations other than their home stations. The requirement to perform overtime can arise either to cover unexpected staff absences or to ensure that special events, such as sporting fixtures and New Year's Eve, are appropriately staffed. 2. Mr Walsh, for Sydney Trains, deposed in his statement as follows: "25. Sydney Trains has reviewed the data from 1 July 2018 to 28 January 2019, relating to Station Workers within Customer Service. This data shows that: a. 62.6% of workers in Customer Service are allocated to a fixed location or home station; b. holiday relief staff (comprised of Part-Time Holiday Relief (PPR) and Permanent Relief (PR)) comprised of 9.7% of workers in Customer Service. Holiday relief staff generally remain at their home station, or move within the Customer Area. Holiday relief staff at medium to large stations [predominantly] rotate through their home station (for example, if there are 12 employees at a station, each taking annual leave, personal/carer's leave, long service leave and other forms of [leave], there will generally be one worker engaged as PPR or PR to cover this leave). Holiday relief staff within Customer Areas with smaller stations [predominantly] rotate within their local Customer Area (for example, if there are 12 employees within a Customer Area boundary, each taking annual leave, personal/carer's leave, long service leave and other forms of [leave], there will generally be one worker engaged as PPR or PR to cover this leave); c. 12.5% of Station Workers in Customer Service are augmented relief staff. And 'augmented' relief staff member is expected to cover absences at short notice, across the whole network. This is for unexpected absences, such as personal/carer's leave. In my experience, rostering arrangements generally ensure that such a worker is allocated to a station within their Customer Area, or as close to their home station as possible; d. augmented relief staff are allocated a home station, with 61% of the shifts for augmented relief staff being worked away from the home station; and e. while augmented relief staff work away from their home station, their shifts are [predominantly] rostered at a neighbouring station or within their Customer Area." 1. Mr Walsh confirmed that employees may be offered overtime at stations either within or outside of their Customer Area. He stated, however, that they are able to accept or decline overtime work. In this regard both Ms Kelly and Mr Dowling gave evidence confirming that they were free to decline overtime work which had been offered. 2. At the hearing, Mr McAuliffe of counsel, who appeared for Mr Rolfe, made the following submissions: "It is to be remembered that, in many respects, he's not the type of employee that would be most affected by geographical restriction. It is the elected HSR's who work in a relief role or the HSR's who are performing overtime work that are being taken outside of their workgroup. It's at those moments that there will be the most, the greatest impact of the geographical restrictions would be felt. And, in many respects, those workers are being denied the opportunity to exercise HSR powers. If you're a relief worker, that's working anywhere across the network, you are simply outside of your workgroup probably most of the time and Mr Barry agreed that those sorts of workers are valuable workers. I mean, they gain experience across the breadth of the network and they shouldn't be the kind of workers that are excluded from exercising their powers under the Act." (Tcpt, p 54 (28-41)) And later: "I just want to address briefly on the unique nature of the workforce, which perhaps I've already touched upon, but it is a matter of evidence as to the extent of the workforce who operate outside of their workgroup. But it's ultimately submitted that, regardless of the conclusion drawn or the finding made, that number is quite significant, given the number of workers in the workforce. So, relief staff are one issue. There's the overtime shifts as well. So, no challenge was made to the applicant's evidence that overtime shifts are commonly offered. No challenge was made to the fact that they are likely to take a worker outside of their workgroup. And there's no challenge to the assertion that these are likely to be perhaps uniquely dangerous shifts, the kinds that involve big events with intoxicated people. So, this is another aspect, another opportunity, for HSR's to be taken outside of their workgroup and to be placed in a situation where they're unable to exercise their powers and it's the applicant's submission that his proposal is much better suited to dealing with that situation than the Sydney Trains proposal." (Tcpt, p 57 (34-48)) 1. I accept that there is some mobility of staff. The evidence does not, however, support the assertion that an employee will be "outside of [his or her] workgroup probably most of the time". Further, there is no evidence of the extent to which HSRs, as opposed to Station Workers generally, are themselves currently working away from their work group and so being deprived of the opportunity to exercise their powers. Mr Rolph gave evidence that he has never exercised HSR powers outside of his work group. Uniqueness of the working environment 1. In his statement Mr Barry deposed as to the unique characteristics and risk profiles across the six current geographical boundaries. He attached to his statement risk registers maintained by Sydney Trains along geographical lines. While there was some consistency in the nature of the risks identified across the network, he maintained that risks varied from boundary to boundary. 2. Under cross-examination, Mr Barry gave the following evidence: "Q. You've provided in your statement some safety risk registers. I think that's what they're called? A. Yes. Q. And they list a variety of risks in relation to a given area that that register applies to, correct? A. Yes. Q. And do you accept from me, and there are, I think it would be fair to say, hundreds of risks identified in each of those registers, it's fair to say? A. They're quite substantial. Q. Yes. A. They're a large document. Q. And would you accept from me that the majority of those risks are not unique to a given area? A. I think that the hazards probably aren't unique but definitely the risk profile within each of those hazards within each geographical boundary is unique to that-- Q. And I accept that there are some unique risks. That's not the point I'm making. But of all the risks identified, the majority of them are the same for each area. Do you accept that? A. No, not really, no. I think the risk varies from each geographical area." (Tcpt, pp 44 (27) – 45 (1)) 1. In re-examination, Mr Barry gave the following evidence: "Q. Mr Barry, you were taken to the risk registers? A. Yes. Q. I just want to clarify something, if I may. These risk registers that you've put in your statement, they cover all the boundaries? A. Yes, they're-- Q. Some cover them in two areas? A. Yes. Q. But I'm sure it is they cover all the boundaries? A. Mm-hmm. Q. The purpose of these risk registers is to identify what are the common risks across the entire network, do you agree? A. Yes. Q. Now, you can take my word for it, if you wish, or you can sit there and count them but I've counted there's 19 risks in these documents that say that are common across the network; do you agree with that? A. Yes, I would, yes. Q. But it's not the case that Sydney Trains just has 19 risks collectively in its whole undertaking? A. That's correct. Q. And so, for example, it may well be, is it fair to say, that where there's specific risks at a specific station, they're not going to be captured in these documents? A. Not every station specific risk would be covered there." (Tcpt p 50 (14-43)) 1. It was Mr Barry's statement which formed the basis for the submissions made by Sydney Trains reproduced at [36] above. 2. Mr Rolph accepted both that there were unique differences across the rail network and that it was preferable for HSRs to exercise their functions in the areas with which they were most familiar. I note the following extracts from the transcript: "Q. I'll ask you the question again. As I said though, when we look at the boundaries that are proposed by Sydney Trains, my question is that, bearing in mind that you've said that the electoral areas after the election form those boundaries and that the electoral areas are a method that's important for safety representation, don't then those boundaries when they form, using your counsel's submission, don't they simply just mean that the best method to distribute health and safety reps across the places where each type of work is carried out just stays that way? Doesn't it keep the status quo, as it were? A. Yes, that's correct, yeah. Q. If it keeps the status quo, if it means it stays that way, it's better to have those elected HSRs that are familiar with those unique circumstances in those different areas of the network staying in those areas, isn't it? A. Yeah, yeah. Q. Yes? A. Yeah, yes." (Tcpt p 7 (11-27)) … "Q. I know, I'll come to that. All right, go back to paragraph 40(e) for me, can you? We were there before. And your reference to the unique circumstances of the workplace? A. 40(e)? Q. Yes, that's right? A. Yep. Q. And we're all on the same page with that. We all agree that, of course, there are unique circumstances across the network. Because that's so, though, Mr Rolph, you'd agree, though, wouldn't you that HSR's at these specific workplaces, at these unique workplaces, all over the network, they're more likely to have greater knowledge, for example, about specific safety issues than say HSR's who hadn't worked there or hadn't worked there much. Would you agree with that? A. Yes. Q. And do you agree that an HSR, at their unique and specific workplace, is more likely going to know when, for example, a local safety issue changes before, say, an HSR in a different boundary? A. (No verbal reply) Q. Just because they're local? A. More than likely, yes. Q. Yes, I'm not, as I said, not putting you to say certain. I'm not doing that to you? A. Yes. Q. And an HSR, at a specific and unique workplace, by being local to that workplace, is more likely to have more experience in dealing with and addressing those risks as well, wouldn't he, or she? A. (No verbal reply) Q. Again, just by being local? A. Yeah, for local safety issues, yes. Q. Doesn't that all mean, as a general statement, that local HSR's, in their local boundaries, more than likely provide more effective safety representation? A. For local areas, yes." (Tcpt pp 14 (42) – 15 (32)) … "Q. Okay. Are you aware of every single risk in every single boundary proposed by Sydney Trains? A. I wouldn't be able to go through them all, no. There's quite-- Q. "Yes" or "No"? A. Yes, no. Q. You've been with the company since 1992? A. Yes. Q. And your answer's still "No"? A. Yes. Q. Doesn't give much hope for an HSR who's been here for less than 30 years then, does it? A. What are you, what are you-- Q. I'm saying that you're an experienced man? A. Yes. Q. No question about that? A. Yes. Q. And there's a lot of different risks across a very complex network? A. That's correct, yes." (Tcpt pp 17 (28) – 18 (2)) … "Q. The way you enhance that understanding about risk across wherever you are is through experience in that area? A. Yes. Q. That really compliments it. Now, you're an experienced worker? A. Yes. Q. And you're experienced here, within the boundary. And let's say then a relief worker from another boundary comes in, work here, as I said and you agreed, that that relief worker clearly is not familiar, as familiar with this area as other regular workers? A. Yep. Q. And it may mean then that that relief worker isn't as familiar with some of the different risks here. You would agree with that? A. (No verbal reply) Q. Just, again, through lack of working here? A. I don't agree with that, no. Q. You don't agree? A. No. Q. All right, so is what you're saying then that, despite someone not working here as much as someone who works here all the time, that they would know all the risks? A. Are you talking about just the actual worker? Q. Yeah? A. Because I don't think the worker sometimes don't - are not aware of some risks. Q. Exactly, exactly. That's exactly my point. That's why we have HSR's? A. That's right. Q. Yes. That's my point then, that when your expertise, years of expertise, is available at your local station, your local boundary and it's kept at your local boundary, you can better look after, you're the best person to look after their safety interests, aren't you? A. Oh yeah, yeah, for sure." (Tcpt pp 24 (29) – 27 (17)) 1. Mr Dowling similarly acknowledged the unique characteristics across the Sydney Trains network. In his affidavit he deposed as follows: "7. Most of the [overtime] shifts that I have worked have been at my home station, or at a station that I am covering someone else's line for career development purposes. I don't particularly like working at a station that I am unfamiliar with on short notice because of the [uniqueness] of the track at each station. If I know enough in advance and can arrange for a comprehensive induction then I will accept the overtime. However, I know that it is extremely common staff to work [overtime] shifts at unfamiliar stations." Number of work groups 1. As noted at [11] above, there was a difference between the parties as to the number of work groups currently in place in the Division. Mr Rolph contended that there were (and are) only three work groups defined only by employee category, that is, Wages, Salary and Cleaning staff. Sydney Trains contended that there were (and are) 18 work groups, being one for every work classification in each of six geographical boundaries. 2. Mr Rolph submitted that to the extent that Mr Allison was under the impression that there are 18 work groups, the Decision might have been based on a false premise. 3. Mr Rolph deposed that his understanding that there were only three work groups came from what he had been told by others and from the contents of a document titled "General Instruction Customer Service Directorate 010/2014" dated 16 November 2014, that was annexed to his affidavit. That document contains the following statement: "There will be three HSR workgroup representations across Stations; Salary, Wages and Cleaners with a combined total of 56 HSR reps." 1. Similar language appears in other documents that are in evidence, and there is some evidence that these documents led another Station Worker to have the same understanding as Mr Rolph. It is not necessary to traverse those documents at length. It is sufficient to note that in addition to making reference to "three workgroups" the documents also refer to the 14 electoral boundaries being combined to form six larger areas. 2. Mr Barry gave evidence that there were (and are) 18 work groups. These are made up of one work group for each of the work classifications (Salary, Wages and Cleaning) in each of the six geographical boundaries. He provided the following breakdown of the HSRs in each geographical boundary as follows: Geographical Boundary 1 2 Salary HSRs Richmond/Emu Plains to Auburn 2 Salary Deputy HSRs 4 Wages HSRs 4 Wages Deputy HSRs 1 Cleaning HSR 1 Cleaning Deputy HSR Geographical Boundary 2 2 Salary HSRs North Strathfield/Berowra/Waverton 2 Salary Deputy HSRs 4 Wages HSRs 4 Wages Deputy HSRs 1 Cleaning HSR 1 Cleaning Deputy HSR Geographical Boundary 3 8 Salary HSRs North Sydney/Central/Bondi Junction 8 Salary Deputy HSRs 11 Wages HSRs 11 Wages Deputy HSRs 2 Cleaning HSR 2 Cleaning Deputy HSR Geographical Boundary 4 2 Salary HSRs Redfern to Lidcombe/Olympic Park 2 Salary Deputy HSRs 4 Wages HSRs 4 Wages Deputy HSRs 1 Cleaning HSR 1 Cleaning Deputy HSR Geographical Boundary 5 2 Salary HSRs Marrickville to Merrylands and Turella to Macarthur 2 Salary Deputy HSRs 5 Wages HSRs 5 Wages Deputy HSRs 1 Cleaning HSR 1 Cleaning Deputy HSR Geographical Boundary 6 2 Salary HSRs Erskineville to Waterfall/Cronulla 2 Salary Deputy HSRs 3 Wages HSRs 3 Wages Deputy HSRs 1 Cleaning HSR 1 Cleaning Deputy HSR 1. Ms Bellette annexed to her affidavit a presentation made by Sydney Trains to its employees in 2018 regarding the proposed WHS consultation arrangements. The clear impression from that presentation is that Sydney Trains did not consider that the proposed structure was a significant departure from the existing one, and that the feedback received by Sydney Trains from HSRs was that they saw little need for change. If Sydney Trains had proposed a change as significant as moving from three to 18 work groups I would expect it to have warranted separate and express mention. Such a reference does not appear in the document. 2. In my view, the reference to "three workgroups" in the documents referred to at [60] and [61] above should not be taken to refer to "work groups" within the meaning of the Act. In context, they are better understood to refer to the three work classifications. 3. I am satisfied that the existing consultation arrangements for Station Workers include 18 work groups. While the precise geographical boundaries of those work groups may change under the present Sydney Trains proposal, there is no significant departure from the current model in this respect. Restriction of HSRs' powers and accessibility? 1. I turn now to the argument on which Mr Rolph placed significant emphasis, namely that by placing geographical restrictions on the formation of work groups, Sydney Trains would be reducing the ability of HSRs to exercise their powers and functions. This is turn will reduce the extent to which HSRs are "readily accessible" to workers. These contentions rest on the premise that HSRs will regularly be required to work outside of the geographical area in which their home station is situated. 2. I have already addressed at [42] – [51] above the extent to which it can be said that the workforce, and in particular HSRs, are "mobile". 3. There is no evidence of any employee having been unable to obtain representation from an HSR when required. In this context I am mindful of the evidence given by Mr Walsh under cross-examination to the effect that across all HSRs and Deputy HSRs there may be as many as 20 vacancies at any given time, and yet there is no suggestion that this has in fact precluded employees from obtaining the assistance of an HSR when required. 4. An HSR will have all of the powers conferred on them by the Act in respect of their work group. While under the Sydney Trains proposal s 69(1) of the Act would generally operate to place a geographical restriction on an HSR's powers and functions, this would not necessarily preclude them ever providing assistance for another work group when they are working in a different geographical area. Section 69(2) specifies those circumstances in which such assistance could be provided. Clause 17 factors 1. I will turn now to consider the particular matters that the Commission is required by cl 17 of the Regulation to take into account. The number of workers 1. There are approximately 1,794 Station Workers across the Sydney Trains network. 2. Mr Rolph submitted that this was a "relatively small number of workers" when consideration is taken of the geographical spread of the workforce across 164 stations. Limiting an HSR to specific stations would achieve little more than restricting and HSRs powers and limit employees' access to HSRs. 3. The number and distribution of HSRs as set out at [62] above suggests that consideration has been given by Sydney Trains to the number and classification of employees in each geographical area. The views of workers 1. While there is evidence of some support for the work group proposal advanced by Mr Rolph, the evidence suggests that there is significant support in the workforce to the Sydney Trains proposal. Sydney Trains submitted, and I accept, that it consulted broadly with its workforce on the variation of work groups and incorporated at least some of the feedback it received. The nature of each type of work carried out by the workers 1. There does not seem to be any dispute that the work classifications of Salary, Wages and Cleaning are appropriate occupational distinctions. 2. To the extent that each classification carries its own particular risks, these would seem to be contemplated in the number and distribution of HSRs across the network proposed by Sydney Trains. The number and grouping of workers who carry out the same or similar types of work 1. Once again, the proposals from each party recognise the need to define work groups by worker classification. The areas or places where each type of work is carried out 1. As already stated, the Sydney Trains network operates across a wide geographical area. The evidence supports the conclusion that while some risks might exist across the network, there will be region- or station-specific risks as well. The extent to which any worker must move from place to place while at work 1. I have dealt with the question of mobility of workers at [42] – [51] above. 2. It must be recognised that if a worker is required to work in a geographical area other than that in which their home station is situated, it will not be the case of them being without any representation. They will become part of the relevant work group in that location and will have access to the HSRs and Deputy HSRs in the new location. The diversity of workers and their work 1. There is no particular evidence as to the diversity of the workforce. To the extent that there is diversity in the work itself, it is common ground that it is reflected in the three work classifications. The nature of any hazards/risks to health and safety at the workplaces 1. I have considered this factor at [52] – [57] above. The nature of the engagement of each worker 1. It is not in dispute that Station Workers in each work group are employees. The pattern of work carried out by workers 1. The evidence suggests that Station Workers are employed on a full-time or part-time basis. The precise nature of the pattern of work is divided into seven categories, which it is not necessary to detail. There seems to be no suggestion that the pattern of work would favour one party's proposal over another. The times at which work is carried out 1. The hours of work of Station Workers depend on the operating hours of the station at which they are working. Fifty of Sydney Trains' 170 stations operate on a 24-hour basis. Any arrangements at the workplace(s) relating to overtime or shiftwork 1. Station Workers can be requested to work overtime, which may take them out of the geographical boundary in which their home station is situated. Workers can choose whether or not to accept any overtime work offered to them. Conclusions 1. Ultimately, I am not persuaded that the geographical boundary proposed by Sydney Trains will reduce the accessibility of workers to an HSR, or detrimentally affect the workers' ability to be represented in relation to WHS issues. As outlined above, there are 56 HSRs and 56 Deputy HSRs across the network. They are distributed across the geographical boundaries to reflect the total number of Station Workers in each area. This distribution should ensure that employees in a work group will have access to an HSR as required. There is certainly no evidence of any particular, much less pervasive, problems with HSRs not being available to assist employees. 2. Even if it could be established that the removal of any geographical condition on the formation of work groups would enhance representation of workers and accessibility of HSRs within the meaning of cl 16 of the Regulation, I am not persuaded that this would outweigh the greater safety benefits to be gained from ensuring that HSRs exercise their powers in the geographical area with which they are most familiar. 3. In my view it is consistent with the object of the Act set out in s 3 to give paramountcy to the proposal that would better "secure the health and safety of workers". 4. To answer the question posed at [39] above, Sydney Trains' work group proposal best achieves the objectives of cl 16 of the Regulation. Order 1. The decision on internal review is confirmed. Damian Sloan Commissioner ********* 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: 09 July 2019