Industrial Relations Commission New South Wales Medium Neutral Citation: Emma Williams v Health Services Union NSW ABN 85037751682 and Anor (No. 2) [2019] NSWIRComm 1044 Hearing dates: Decision made on the papers Date of orders: 09 July 2019 Decision date: 09 July 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The application for costs is dismissed Catchwords: WORK HEALTH AND SAFETY – application for external review – application dismissed – respondent applied for order for costs – principles to apply – whether proceedings instituted without reasonable cause Legislation Cited: Industrial Relations Act 1996 (NSW) s 181 Work Health and Safety Act 2011 (NSW) ss 66, 68, 69, 104, 105, 106, 107, 223, 229 Work Health and Safety Regulation 2017 (NSW) cl 16 Cases Cited: Dr A v Health District (No 4) [2014] NSWIRComm 56 Emma Williams v Health Services Union NSW ABN 85037751682 and Anor [2019] NSWIRComm 1032 Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 Category: Costs Parties: Emma Williams (Applicant) Health Services Union NSW (First Respondent) SafeWork NSW (Second Respondent) Representation: Emma Williams (Self-Represented) P Boncardo of Counsel (First Respondent) M Keating (Second Respondent) File Number(s): 2019/54835 Judgment 1. On 10 May 2019 I handed down my decision in Emma Williams v Health Services Union NSW ABN 85037751682 and Anor [2019] NSWIRComm 1032 ("my earlier decision"). 2. In the proceedings giving rise to my earlier decision Ms Williams had made an application for an external review pursuant to s 229 of the Work Health and Safety Act 2011 (NSW). By Notice of Motion filed on 15 March 2019 ("Motion") the Health Services Union NSW ("HSU") sought orders including that the proceedings be dismissed. In my earlier decision I granted the Motion, dismissing the proceedings on the basis that Ms Williams was not an eligible person within the meaning of s 223 of the Work Health and Safety Act and hence had no standing to bring an application under s 229. 3. After delivering my earlier decision ex tempore the HSU indicated that it wished to be heard on costs. I made directions for the filing and service of evidence and submissions on the question of costs. The parties consented to the application for costs being determined "on the papers". 4. The Commission received submissions from the HSU seeking an order for costs on the Motion on a party-party basis, as agreed or assessed. Ms Williams filed submissions in reply, objecting to any order for costs. SafeWork NSW, not unexpectedly and, with respect, appropriately, made no submissions. 5. The Commission's power to award costs is conferred by s 181 of the Industrial Relations Act 1996 (NSW), which is in these terms: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (2) However, the Commission may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if: (i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. (3) (Repealed) (3A) Despite subsection (1), the Commission may not award costs in proceedings under Part 7 of Chapter 2. Note. This subsection does not prevent the award of costs in appeals relating to questions of law in relation to public sector promotional and disciplinary matters under section 197B. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 1. The approach to be taken by the Commission to its discretion under s 181 was described by the Full Bench in Re Operational Ambulance Officers (State) Award (No 2) [2011] NSWIRComm 85 as follows: "[28] The exercise of the Commission's discretion to award costs involves a two stage process: see Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 and Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400. The first stage requires a determination as to whether s 181(2) of the Act is enlivened. The second stage of the process requires the Commission to exercise its discretion whether to award costs under s 181(1) of the Act." 1. In Dr A v Health District (No 4) [2014] NSWIRComm 56 Boland AJ, with whom Stanton and Newall CC agreed, made the following observations: "[8] The Commission's jurisdiction (as distinct from the Commission in Court Session) is essentially a non-costs jurisdiction. There are limited exceptions, which are prescribed in s 181(2) of the IR Act. If one or more of the tests required by s 181(2) are met in any particular case it then becomes a matter for the Commission's discretion whether to award costs: s 181(1)(b)." 1. The HSU's application for costs relies on s 181(2)(b) of the Industrial Relations Act. 2. The HSU's submissions included the following: "8. The HSU submits the Applicant satisfied the requirement in s 181(2)(b) and opened the 'jurisdictional gateway' required to enliven this section by filing the Application when it was not apparent, even on her own version of the facts, how she was an 'eligible person' within the meaning of the legislation. In the circumstances, the HSU respectfully submits: (a) the above facts were apparent to the Applicant at the time she filed the Application; (b) the Application traversed broader issues including those which the Applicant in her opinion considered were in the workplace 'spanning from 2012 until the present'; (c) such issues had no apparent connection to the Improvement Notices issued to the HSU; (d) the Applicant did not articulate with reference to specific facts how she was 'a worker whose interests were affected' or how her role as an HSR in the Industrial work group made her an eligible person under WHS, section 229(1) in respect of the decisions made on internal review with respect to the Notices; and (e) the Applicant persevered even after the jurisdiction issue was raised; and (f) the Applicant had a sense of grievance in her own mind but did not have reasonable cause to commence or maintain the proceedings. … 14. By maintaining the Application in light of the jurisdictional issues raised by the HSU without any supporting evidence, including any evidence relevant to her submissions that there was a 'commonality between the work groups', evidence of approaches to the Applicant in her then capacity as HSR from any workers within another work group, evidence as to how her interests were affected directly or indirectly, the Applicant caused the HSU to incur significant costs unnecessarily. As previously submitted, the Applicant was someone who appeared concerned with the decisions to set aside the relevant Notices, but her interest was no more than a mere 'intermeddler'' or a 'busybody'. Nevertheless, the HSU was put to the expense of preparing the Motion and proceeding to a hearing on the issue of jurisdiction when the Applicant had facts available to her at the time she made the Application which did not support such contentions. … 18. In reliance on these principles, the HSU says the Commission should exercise its discretion to award the HSU its costs on the Motion for the following reasons, which it says amount to exceptional circumstances: (a) The Applicant's conduct in filing the Application, when armed with the facts outlined in the above table, demonstrated she misapprehended the function of the Industrial Relations Commission and as submitted, sought to air general grievances against her employer through the Commission; (b) the Application was made for an inappropriate and extraneous purpose, namely, to ventilate the extraneous and collateral issues identified above; (c) At the time Ms Williams filed the Application which traversed matters outside the relevant Notices, the parties had agreed on an independent investigation process (with an investigator of Ms Williams' choosing) to address Ms Williams' alleged grievances, which was appropriately outside the jurisdiction of the Commission, and in which the HSU had genuinely participated, at the HSU's expense; (d) The HSU placed Ms Williams on notice of the unclear basis upon which the Application had been filed; (e) Ms Williams maintained her Application despite being placed on notice of a foundational impediment in that the application suffered from a jurisdictional defect from as early as 26 February 2019; (f) Ms Williams was on notice by way of the Notice of Motion filed on 15 March 2019 that the HSU intended to seek costs in seeking to dismiss the Application for in reliance on this jurisdictional defect; (g) As a member organisation, the HSU seeks to conduct itself in the members' interests and should not have been put to the expense of running these proceedings; (h) Despite the matters outlined in 17(a) to (g) above, the HSU was put to the unnecessary expense of filing and proceeding on its Motion to dismiss the proceedings; (i) The expenses are additional to the extensive costs the HSU has incurred in the course of the agreed independent investigation regarding Ms William's grievances; and (j) The HSU should be compensated for the costs it has incurred in running its Motion in circumstances where it says the whole proceedings should not have been brought or maintained in light of the jurisdictional issues which were apparent or should have been apparent to the Applicant, and which were raised by the HSU at an early stage of the proceedings, as outlined above." (Footnotes omitted) 1. In response, Ms Williams drew the Commission's attention to the role of health and safety representatives ("HSRs") under the Work Health and Safety Act, and the "specific immunity" given to them under ss 66, 104, 105, 106 and 107 of that Act. She claimed that the application for costs was in breach of these provisions and otherwise "unethical". Her submissions included the following: 3. …I filed an application to the Industrial Relations Commission for an external review of a reviewable decision made by SafeWork NSW as permitted under Section 229 of the NSW Work Health and Safety Act 2011. At the time of making this application, I was a duly elected HSR for the Industrial Services Division and a member of the unions Work Health and Safety Committee. The application was made 'in good faith' with the belief that I was an 'eligible person' permitted to make such a decision as prescribed by Section 223 (7) of the WHS Act 2011. A worker whose interests are affected by the decision or his or her health and safety representative. … 12. It is manifestly groundless for the HSU NSW Branch to provide no communication, assistance or representation to myself as a member, and then claim that I knew that my application had no possibility of success. The matter was decided on the legal technicalities of words such as 'affected' and 'interest'. As a self-represented party, I was very upfront that this matter was not within my usual scope of Commission work. I have had no direct communication from the PCBU since the HSU WHS Committee on the 15th February 2019, which was quickly shut down as soon as the agenda came to discuss the application for internal review, already submitted. I maintain that this whole matter and the union members funds spent are 100% attributable to the PCBU actions without consultation and inactions of the PCBU to protect it workers from psychological harm. 13. I respectfully request that the HSU NSW Branch application for costs be dismissed. It would set very dangerous precedents for union members, Health and Safety Representatives and members of Work Health and Safety Committees." (Sic, emphasis in original) 1. On the question of whether proceedings have been instituted without reasonable cause, in Dr A v Health District (No 4) Boland AJ made the following observations: "[14] In Re Operational Ambulance Officers, the Full Bench, at [31]-[32], also referred with approval to what Wilcox J said in Kanan v Australian Postal & Telecommunications Union [1992] FCA 366; (1992) 43 IR 257 at 264-265 in respect of the phrase 'without reasonable cause': [29] It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceedings, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where it appears that, on the applicant's own version of the facts, it is clear that the proceedings must fail, it may properly be said that the proceedings lacks a reasonable cause. [15] The mere fact that an applicant was unsuccessful in its application does not, of itself, make the application frivolous or vexatious or one that is pursued without reasonable cause. Additionally, it is to be noted that s 181(2)(b) requires that in considering the applicability of the phrase 'without reasonable cause', as Wilcox J pointed out in Kanan, it is to be done 'upon the facts apparent to the applicant at the time of instituting the proceedings'." 1. The HSU's submissions relied heavily on the fact that Ms Williams failed to meet the evidentiary burden on her, and the assertion that, on the facts known to her at the time, it should have been clear to Ms Williams that the proceedings would fail. This contention overlooks the legal complexity of the proceedings. 2. As is clear from my earlier decision, the Motion raised reasonably complex issues of statutory construction. The fundamental question to be determined on the Motion was whether Ms Williams was an "eligible person" within the meaning of s 223 of the Work Health and Safety Act, which in turn required consideration of the proper construction of the categories in item 7 of that section. That necessitated addressing the following matters: 1. whether receiving a copy of an improvement notice in a meeting of a work health and safety committee made Ms Williams a "person to whom the notice was issued"; 2. whether the term "a health and safety representative who represents a worker whose interests are affected by the decision" is constrained by other provisions of the Work Health and Safety Act (such as ss 68 and 69) or cl 16 of the Work Health and Safety Regulation 2017 (NSW)); and 3. what is meant by the term "worker whose interests are affected by the decision". This required an examination of case law from other jurisdictions. 1. Further, in my earlier decision I made the following observations: "68. Ms Williams drew my attention to s 77 of the Work Health and Safety Act, which is in these terms: 77 Functions of committee The functions of a health and safety committee are: (a) to facilitate co-operation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers' health and safety at work, and (b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace, and (c) any other functions prescribed by the regulations or agreed between the person conducting the business or undertaking and the committee. 69. It is at least arguable that an HSR who is a member of a health and safety committee could, by virtue of that role, have interests (as opposed to an interest) that might extend beyond the workgroup that they would otherwise represent. In the present case, however, there is insufficient evidence to enable me to come to a view that such is the case with Ms Williams." 1. The legal complexity of the proceedings is perhaps evidenced by the fact that the HSU saw it necessary to engage both an external law firm and counsel to represent it in the proceedings. 2. What is noticeably absent from the evidence is any attempt by the HSU proactively and constructively to raise with Ms Williams, who was and presumably still is its employee, the jurisdictional issues that it took with her application. Instead, it engaged an external law firm to do little more (in the context of the Motion) than to ask Ms Williams how she asserted that she was an "affected worker". 3. I commented at [7] in my earlier decision that the evidence disclosed a history of difficulties, if not conflict, in the relationship between Ms Williams and the HSU. The approach taken by the HSU's solicitors was unfortunately adversarial in nature and perhaps reflective of that conflict. In the circumstances it is perhaps understandable that Ms Williams did not respond to the HSU's correspondence but sought to answer their question through the proceedings. 4. In light of the issues raised in the proceedings giving rise to my earlier decision, I am not satisfied that Ms Williams' failure to meet the evidentiary burden on her should lead to the conclusion that the proceedings were brought without reasonable cause. While Ms Williams was ultimately unsuccessful, there were arguable points of law raised which, had they been determined in her favour, might well have produced a different result. 5. I would add that even if I were so satisfied, in light of all of the circumstances of the matter I would decline to exercise my discretion to award costs to the HSU. 6. In my earlier decision I stated as follows: "75 Having made that finding, it is not necessary to consider the alternative submissions advanced by the HSU to the effect that the Application is frivolous, vexatious and/or an abuse of process. 76 I will limit my observations to these. I am not satisfied on the material before me that, in bringing the Application, Ms Williams was actuated by improper or inappropriate motives. The way in which Ms Williams presented her case and the content of her evidence and submissions is indicative more of a layperson unfamiliar with the legislation and the Commission's jurisdiction than of a person who has acted mischievously or, in a calculated way, vexatiously." 1. Those comments are apposite to the HSU's application for costs. Order 1. The application for costs is dismissed. 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