Industrial Relations Commission New South Wales Medium Neutral Citation: Killen v SafeWork NSW and NSW Rural Fire Service [2019] NSWIRComm 1078 Hearing dates: 28 August 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Order that: (1) The application for orders 2 and 3 of the Notice of Motion is dismissed. (2) The parties are directed to consider these reasons and advise by 4 pm on 22 October 2019 whether any redactions are necessary to ensure compliance with the non-publication order. (3) The matter will be listed for directions on 30 October at 9:30 am. (4) The parties have liberty to apply in respect of order 3 on three days' notice. Catchwords: EXTERNAL REVIEW – application by Health and Safety Representative – work group – interest affected Legislation Cited: Industrial Relations Act 1996 (NSW) Work Health And Safety Act 2011(NSW) Cases Cited: Commission Against Corruption v Cunneen [2015] HCA 14, 256 CLR 1 The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v SafeWork NSW [2018] NSWIRComm 1053 Williams v Health Services Union NSW [2019] NSWIRComm 1032 Category: Procedural and other rulings Parties: James Killen (Applicant) Safework NSW (First Respondent) New South Wales Rural Fire Service (Second Respondent) Representation: Counsel: L Saunders (Applicant) M Fleeton (First Respondent) J Alderson (Second Respondent) Solicitors: Haywards Solicitors (Applicant) Clayton Utz (Second Respondent) File Number(s): 2019/00188389 Publication restriction: Pursuant to s 164A and by consent the Commission ordered on 28 August 2018 that no information that identifies or tends to identify the employees who made complaints or the manager about whom the complaints were made shall be disclosed or published. Judgment 1. The applicant is a Health and Safety Representative ("HSR") elected pursuant to Div 3 Subdiv 4 of the Work Health and Safety Act 2011 (NSW) ("WHS Act"). He is also an elected delegate of the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"). He makes application ("the Notification") for an external review of a decision by the first respondent setting aside an Improvement Notice issued to the NSW Rural Fire Service by an Inspector employed by the first respondent. 2. The NSW Rural Fire Service filed a Notice of Motion seeking to be joined as a respondent and making application for the proceedings to be dismissed on the basis that the Notification was invalid. The invalidity was said to arise from the lack of standing by the applicant to make the Notification on the basis that he is not an "eligible Person" within the meaning of s 229 of the WHS Act because: 1. he is not a worker whose interests are affected by the decision; and 2. he is not an HSR of a worker whose interests are affected by the decision. 1. There was no opposition to the second respondent being joined. I therefore made orders at the commencement of the hearing joining NSW Rural Fire Service as the second respondent. The substantive issue to be determined on the motion was whether the applicant had standing to make the Notification. Non-publication order. 1. At the conclusion of the hearing the second respondent asked for a non-publication order to protect the identities of the employees involved. I made an order by consent pursuant to s 164A of the Industrial Relations Act 1996 (NSW) ("the Act"). In the course of this decision I will refer to the person about whom bullying complaints were made as the "manager" and the other employees as the "complainants". Similarly, I will refer to the Region in which they worked as "Region 1". Evidence 1. The second respondent relied upon the following: 1. An affidavit of Cilla Robinson dated 1 July 2019; and 2. Two affidavits of Lisa Chih dated 22 July 2019 and 27 August 2019. 1. The applicant relied upon his statement dated 7 August 2019 and tendered the Internal Review Report dated 6 May 2019. 2. No witness was required for cross-examination. 3. In her affidavit Ms Robinson, the solicitor on the record for the second respondent, deposed as to the history of the matter. She said: 1. The Regional Services of the second respondent are divided geographically into four regions – North, East, South and West. 2. In May 2017 concerns were raised by four complainants, working in Region 1, alleging bullying by the manager. 3. The second respondent decided to treat the complaints as grievances under the relevant Service Standard. 4. An external provider was engaged to conduct an investigation into the grievances and the final investigation report was provided in May 2018 making certain recommendations. 5. Prior to receipt of the report the manager was assigned to another role which became available in the ordinary course of business. In the new role the manager had no responsibility for the complainants. 6. In April 2018, following a request for service by the PSA in March 2018, the first respondent approached the second respondent to discuss the subject matter of the request. 7. The first respondent issued the second respondent, in the context of those discussions, with a notice pursuant to s 155 of the WHS Act. 8. The second respondent replied comprehensively to the notice on 21 September 2018. 9. On 3 April 2019 the first respondent issued the Improvement Notice to the second respondent. 10. On 17 April 2019 the second respondent made application for internal review. 11. On 10 May 2019 the first respondent informed the second respondent that the Improvement Notice had been set aside. 1. Ms Robinson also gave certain information about the applicant. She said: 1. He was an HSR for the second respondent's Headquarters (which is not located in or part of Region 1) work group. 2. In his capacity as an HSR his role was confined to Headquarters staff. 3. The four complainants were not employed in that work group but four different work groups, three of which had elected HSR's. 4. The applicant is also PSA Departmental Chairperson. In that role he presides over the meetings of the Joint Consultative Committee ("JCC"). 1. In Ms Chih's first affidavit she: 1. said she was employed as the Director Membership Services of the second respondent and was based at Headquarters. She provided details of the employment history with the second respondent; 2. advised that the Improvement Notice had been served on her and provided confirmatory evidence in relation to the Improvement Notice already provided by Ms Robinson; 3. also provided: 1. an explanation of the second respondent's regional structure; 2. information as to where the four complainants were located and said that one had withdrawn his complaint before the matter proceeded to investigation; 3. a copy of the investigation report and extracts from the Grievances Service Standard; 4. some more information in relation to the change of role by the manager; 5. information as to the system of work in managing and mitigating psychological risk; 6. some greater detail on the actions of the first respondent in response to the service requests made by the PSA; 7. some greater detail in relation to the applicant's roles within the second respondent; and 8. information that the applicant had not, prior to these proceedings, reported or raised concerns in relation to bullying. 1. In her second affidavit Ms Chih provided detailed information in relation to the development of work groups and the HSR model within the second respondent and made some specific responses in relation to the statement of the applicant (see [13]). In particular she explained that the programs called "Neighbourhood Safer Places" and "Community Protection Plans" identified by the applicant, applied across the regions and said that they had no substantive link with the applicant's role as an HSR. 2. In his statement Mr Killen: 1. detailed his history with the second respondent and his employment history prior to joining it in 2011; 2. said he had been a member of the PSA since 1994 and an elected delegate at the second respondent since 2011; 3. confirmed he was a certified HSR having completed his training in March 2019; 4. provided his understanding of the history of the development of work groups and election of HSR's at the second respondent and the issues arising out of the differences in work between volunteers and staff members; 5. said that ultimately 47 work groups, incorporating both volunteers and paid staff, were established and Service Standards produced; and 6. said that, following the elections, he commenced as an HSR on 1 March 2019. 1. Mr Killen also said he became aware of the bullying complaints in February 2017 when a delegate reported to the Departmental Committee. He said that his substantive role involved work related to the region in which two of the original complainants perform their work. He attended workshops and presented in relation to "Community Protection Plans" and conducted inspections under the "Neighbourhood Safer Places" program. In the course of such duties he came into contact with one of the complainants who indicated continuing concern. The applicant took no direct action at the time because he was aware the PSA was dealing with the matter and he had not yet been elected as an HSR. 2. Mr Killen expressed his concern about the effectiveness of the second respondents policies in connection with, in particular, bullying and harassment. He said the removal of the improvement notice meant that the second respondent: "will not take proper steps to change its approach and implement proper systems to protect the health and safety of persons who make bullying complaints" The Improvement Notice 1. In the improvement notice the Inspector expressed his belief that the second respondent had contravened s 19 of the WHS Act and that it was likely the contravention would continue or be repeated. He described how the provision was being contravened in the following terms: "The PCBU's current processes for investigating alleged bullying and other psychosocial hazards expose workers/persons to a risk to their health and safety due to a significant delay in responding to reported psychological health effects at the earliest available opportunity. i.e. the grievances lodged by multiple [complainants] in May 2017 against Manager Region [1] involved multiple reports of psychological health effects to multiple investigators, resulting in the completion of an external investigation in May 2018 with no action taken to address the psychological health effects during this 12-month period." (Emphasis added) 1. The Inspector then directed the second respondent to develop, implement and maintain safe systems of work and specified certain minimum criteria. The Inspector also provided recommendations as to guidance to be obtained from certain publications in developing the safe systems. Compliance with the Improvement Notice was required by 10 June 2019. The legislation 1. Relevant parts of the WHS Act for present purposes are: 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. (Emphasis added) 60 Eligibility to be elected A worker is: (a) eligible to be elected as a health and safety representative for a work group only if he or she is a member of that work group, and (b) not eligible to be elected as a health and safety representative if he or she is disqualified under section 65 from being a health and safety representative. (Emphasis added) 68 Powers and functions of health and safety representatives (1) The powers and functions of a health and safety representative for a work group are: (a) to represent the workers in the work group in matters relating to work health and safety, and (b) to monitor the measures taken by the person conducting the relevant business or undertaking or that person's representative in compliance with this Act in relation to workers in the work group, and (c) to investigate complaints from members of the work group relating to work health and safety, and (d) to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking. (2) In exercising a power or performing a function, the health and safety representative may: (a) inspect the workplace or any part of the workplace at which a worker in the work group works: (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and (b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and (c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (e) request the establishment of a health and safety committee, and (f) receive information concerning the work health and safety of workers in the work group, and (g) whenever necessary, request the assistance of any person. Note. A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices. (3) Despite subsection (2) (f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that: (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. (4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity. (Emphasis added) 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. (Emphasis added) 191 Issue of improvement notices (1) This section applies if an inspector reasonably believes that a person: (a) is contravening a provision of this Act, or (b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. (2) The inspector may issue an improvement notice requiring the person to: (a) remedy the contravention, or (b) prevent a likely contravention from occurring, or (c) remedy the things or operations causing the contravention or likely contravention. (Emphasis added) 192 Contents of improvement notices (1) An improvement notice must state: (a) that the inspector believes the person: (i) is contravening a provision of this Act, or (ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated, and (b) the provision the inspector believes is being, or has been, contravened, and (c) briefly, how the provision is being, or has been, contravened, and (d) the day by which the person is required to remedy the contravention or likely contravention. (2) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. (3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances. 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) … 1. Section 223 of the WHS Act identifies decisions which are reviewable and the persons who are eligible to make application for review. Item 7 relates to the issue of improvement notices under s 191. The persons eligible are specified as: 1. the person to whom the notice was issued; 2. a person conducting a business or undertaking whose interests are affected by the decision; 3. a worker whose interests are affected by the decision; and 4. a health and safety representative who represents a worker whose interests are affected by the decision. Submissions 1. Ms Alderson, counsel for the second respondent, submitted that the critical issue in this case is the proper construction of the Improvement Notice in the context of the WHS Act and in particular the work groups established in the second respondent. Counsel submitted that the power to issue an improvement notice is enlivened by an Inspector forming a reasonable belief that there has been a contravention and the contravention is likely to continue. 2. The alleged contravention in this case, she submitted, was the delay in investigating grievances lodged by the complainants in Region 1. The directions provided in the Improvement Notice are to remedy that contravention alone. The Parliament has limited the class of persons who can apply to review a decision and importantly unions are not included. The proper applicant in these proceedings would have been an HSR in one of the work groups of at least one of the complainants. 3. Having adverted to the well-known principles of statutory construction, Counsel referred to the decision of the High Court in Independent Commission Against Corruption v Cunneen [2015] HCA 14, 256 CLR 1 in connection with the construction of the clause "whose interests are affected" as it appears in s 223 Item 7. She placed emphasis on the importance of statutory context in determining whether the applicant's interests or those of a worker he represents are affected. 4. The provisions in ss 191 and 192 emphasise the importance of the contravention perceived by the Inspector issuing the Improvement Notice. The emphasised words in the description of the contravention set out at [15] provide the context in which to understand the balance of the notice. Those words demonstrate that the Improvement Notice is directed to the region in which the contraventions were identified. Counsel stressed that the directions as to the measures to be taken to remedy the contravention must relate, in accordance with s 192(2), to the contravention identified in the notice. 5. Counsel then referred to s 69 and the restrictions on the roles of HSR's to matters which "affect, or may affect, workers" in their work group. She submitted that the exceptions referred to in subs (2) did not apply in the instant case. To accede to the submissions of the applicant would render s 69(1) ineffective. 6. Counsel referred to the decision of Commissioner Sloan in The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v SafeWork NSW [2018] NSWIRComm 1053. In that case the applicant was the Union. It was common ground between the parties that the Union was not eligible to bring the application. Accordingly it sought to substitute a union member as the applicant. The Commissioner held that the defect in the process was not merely a misdescription but fundamental. As the defect went to jurisdiction it could not be waived and the proceedings were a nullity. 7. The second case referred to was that of Williams v Health Services Union NSW [2019] NSWIRComm 1032. The applicant in that case was an employee of the Union. Two improvement notices had been issued relating to the Members Services Division and the Organisers Section. Ms Williams was not employed in either section. In the course of his decision at [68] – [70] the Commissioner drew a distinction between a legitimate interest in health and safety and "an interest" that will be affected by a decision within the meaning of s 223. The Commissioner then said: 69 In short, I am not satisfied that the Decision, which relates to improvement notices issued in respect of workgroups of which she is not a member, affects Ms Williams' interests. Further, other than sharing an overarching interest in ensuring work health and safety in the workplace, there does not appear to be a "commonality between the workgroups" that would demonstrate that what affects one would necessarily affect all. 70 It follows that I find that Ms Williams is not an eligible person within the meaning of s 223 of the Work Health and Safety Act and has no standing to bring an application under s 229. 1. Counsel submitted that this case is on all fours with the decision in Williams and the application should be dismissed as a nullity. 2. Ms Fleeton, solicitor for the first respondent, indicated that her client wish to remain neutral in the current application. 3. Ms Saunders, counsel for the applicant, agreed that the construction of the improvement notice was a critical feature in deciding the present application. Key features of the improvement notice were: 1. it was not in terms confined to Region 1; 2. the grievances referred to in 2017 were illustrative of the contravention which was in relation to processes; 3. the contravention identified was the lack of proper processes to manage bullying complaints and related conduct issues; 4. the notice is about prospective improvement not retrospective repair; 5. the improvement notice is about the risk the Inspector has been alerted to by the 2017 complaints; 6. the directions specified in the notice require the development, implementation and maintenance of safe systems of work for reporting, evaluating and investigating bullying complaints; 7. it's about moving forward and what's to be done next; 8. the second respondent has a centralised policy system, with the policies applicable in Region 1 applied centrally conferring benefits and imposing obligations on all employees and managers. 1. Counsel submitted there was little between the applicant and the second respondent in that it was common ground that an HSR can only represent workers in that representatives work group. She distinguished the Williams case on the basis that Ms Williams was neither directly nor indirectly affected by the decision because the improvement notices in that case was specifically directed to particular work groups. As the policies of the second respondent have equal effect throughout the organisation, any deficiency in the policy affects the interests of all workers employed in the organisation. 2. In reply, Ms Alderson relied upon the use of the expression "i.e." by the Inspector indicating that he confines his reasonable belief to the processes applied in Region 1. She also pointed to the liability of the second respondent who was subject to a penalty regime for failure to comply with the notice within the requisite time. As it was only a period of two months from the issue of the notice it was inappropriate to construe the notice as having general application across the entire undertaking of the second respondent. 3. In connection with these latest considerations, Ms Fleeton submitted that improvement notices, in order to be effective tools in the maintenance of health and safety, need to be practical and capable of ready implementation. Consideration 1. It's important to bear in mind the present application is concerned only with the eligibility of the applicant to seek a review of the first respondent's decision. That is a question independent of the merits of the matter. I observe that a good deal of the evidence read in the proceedings goes to the merits. It is unnecessary to descend to a detailed discussion of the evidence. At best it provides some useful background to the nature of the improvement notice. 2. I accept both counsels' submissions that key to the resolution of this issue is the construction of the improvement notice. That is not without difficulty. There is no doubt that the Inspector was concerned about the events between May 2017 and May 2018. According to the Improvement Notice that concern led the Inspector to form a belief that the contravention may continue or be repeated. It seems unlikely that the Inspector regarded the contravention as continuing at that time given his confining of the factual circumstances to the period May 2017 to May 2018. It is more likely he was concerned that the contravention may be repeated. The construction difficulty is in part due to the Inspector using all of the language of s 191(1)(b) and not merely those parts which apply to the instant case. 3. That he had such a concern is supported not merely by statement of the details of the contravention to that effect but by the description of how the provision was being or had been contravened. He begins that section of the improvement notice with the words: "The PCBU's current processes for investigating alleged bullying and other psycho social hazards expose workers/persons to a risk…" 1. These words are not confined to Region 1 nor is there any suggestion in the evidence or submissions that the processes are confined to that Region. To the contrary, the processes operate across the entire undertaking. I acknowledge Ms Alderson's submission that the evidence or information provided by the Inspector refers only to past conduct in Region 1. However there are other factors apart from the opening words I have set out at [34] which support a contrary construction as to the scope of the Improvement Notice. 2. For example: the Notice is issued to the NSW Rural Fire Service; under the heading "Details of contravention" the specified site location is the headquarters of the second respondent; notwithstanding the Inspector's location in a regional office, the notice was served, according to both the terms of the notice and the evidence of Ms Chih, on her at her headquarters location; Ms Chih is described as the "Person in control of the relevant activity"; and, as Ms Saunders submitted, the directions provided relate to the development of safe systems across the undertaking. 3. It may be said that the first point is equivocal because the second respondent is the only relevant "person" in connection with a contravention of s 19. It is notable, however, that a contravention of s 27 is not alleged in relation to the "officers" of the second respondent. Were that the case it would point more to a failure within Region 1 than across the undertaking. 4. Ms Alderson's submission focusses on the words following "i.e." whereas Ms Saunders submission targets the words preceding that abbreviation. In my opinion Ms Saunders approach is to be preferred. The opening words of the section describe the contravention and the following words provide a basis for the development of the belief. 5. Weighing these various considerations, in my view the Inspector was directing the attention of the second respondent to addressing its policies, and processes of implementation and maintenance of those policies, not merely in Region 1 but generally. 6. That is not the end of the matter however. The question is whether the interests of the applicant, or a worker he represents, are affected by the decision to set aside the improvement notice. According to his evidence he is affected. At paragraphs 28 and 31 of his statement he said: 28. The directions in the Improvement Notice provide clear guidance to NSW RFS on the development of practical solutions to counteract the impacts of "bullying" in the NSW RFS workplace. I am concerned that the cancellation of the Improvement Notice will mean that NSW RFS will not take proper steps to change its approach and implement proper systems to protect the health and safety of persons who make bullying complaints. and 31. I am personally effected by the approach NSW RFS takes to both the content and implementation of its bullying and harassment processes, both as a NSW RFS employee, and a HSR. I am deeply concerned at the way NSW RFS handled the complaints made by the four staff about the Manager Region [1] and have not seen any evidence that this would be done differently in the notice of motion the future. I am concerned that this process - of leaving people in the workplace while their complaint is investigated for a very long period of time, with no real safeguards, causes an ongoing risk: a. Specifically, to any worker who makes a bul!ying complaint in future; and b. Generally, because it will discourage people from making complaints and leave the unsafe bullying culture in NSW RFS undisturbed. In my view this risk effects [sic] every worker, including myself and those in the workgroup that l represent as a HSR. 1. Commissioner Sloan in Williams, in the passage quoted at [25], observed that there did not appear in that case "a 'commonality between work groups' that would demonstrate that what affects one would necessarily affect all". That commonality exists in this case in the processes set out in the second respondent's Service Standard relate to all staff. 2. Whether Mr Killen's concerns are valid is yet to be determined. They do however provide a basis upon which one may conclude that he, and the employees he represents, have interests which are affected by the decision the subject of the Notification. I do not consider it appropriate, on a limited interlocutory hearing, to determine whether those interests are adversely affected. That will be a matter to be determined on the review. Orders 1. I have already noted that I have made orders in accordance with the first prayer. 2. Order that: 1. The application for orders 2 and 3 of the Notice of Motion is dismissed. 2. The parties are directed to consider these reasons and advise by 4 pm on 22 October 2019 whether any redactions are necessary to ensure compliance with the non-publication order. 3. The matter will be listed for directions on 30 October at 9:30 am. 4. The parties have liberty to apply in respect of order 3 on three days' notice. ********** 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: 24 October 2019