s.229 WHS Act - WH&S Review Authority

Airservices Australia Pty Ltd Trading AS Airservices

Fair Work Act s.589(1) and s.590 - Procedural decision - Application by Mr Jason Adams to intervene in the matter - Alternative application by Mr Jason Adams to participate in the matter by giving evidence etc. - Application to intervene dismissed - Application to participate by giving evidence etc granted.

• [1] This decision concerns an application by Mr Jason Adams to intervene in or alternatively to participate in an application made under s 229 Work Health and Safety Act 2011 (Cth) (WHS Act) by Airservices Australia Pty Ltd (Airservices) (External Review Application) in the Fair Work Commission (Commission).

• [2] Mr Adams makes his application under s 589(1) and s 590 of the Fair Work Act 2009 (Cth) (FW Act). In respect of intervention, Mr Adams seeks leave to intervene and participate as a party. In respect of his alternative application, Mr Adams seeks leave to participate in the External Review Application by giving evidence, cross-examining witnesses and making written and oral submissions.

• [3] The External Review Application names Comcare as respondent.

• [4] Mr Adams is employed by Airservices in the position of Lead Aviation Firefighter in Aviation Rescue and Fire Fighting Services (ARFFS) at Melbourne Airport. Mr Adams is an elected HSR under the WHS Act for the ARFFS "A" crew.[1] The ARFFS "A" crew is one of four ARFFS crews who operate in rotation across Melbourne Airport.

• [5] On 22 November 2024, Mr Adams issued a provisional improvement notice (PIN) to Airservices under s 90 of the WHS Act. The Airservices External Review Application form describes the PIN as being "in relation to incomplete radio coverage at Melbourne Airport following the implementation of a radio system introduced by Airservices to address deficiencies in the previous copper-based system."

• [6] On 29 November 2024, Airservices requested a review of the PIN by Comcare pursuant to s 100 of the WHS Act. Comcare is the regulator under the WHS Act.

• [7] On 29 November 2024, Comcare appointed Inspector Komal Norman to review the PIN pursuant to s 101 of the WHS Act. On 26 February 2025, Inspector Norman confirmed the PIN with changes pursuant to s 102(1)(b) of the WHS Act. Consequent on that confirmation, Inspector Norman issued an Improvement Notice dated 26 February 2025 pursuant to s 191 of the WHS Act. The Improvement Notice recorded Inspector Norman's formation of a belief, expressed as a reasonable belief, that Airservices "is contravening section 19 of the [WHS Act] by failing to ensure, so far as is reasonably practicable, the health and safety of workers at the workplace and others, as it has not rectified known issues with the radio system in circumstances where ARFFS workers are unable to communicate effectively and efficiently including in situations requiring emergency services." The Improvement Notice also set out some matters which founded Inspector Norman's belief and contained directions to Airservices to remedy the asserted contravention. The compliance date for the Improvement Notice is 25 August 2025. Inspector Norman's directions constituted amendments to directions contained in the PIN issued by Mr Adams.

• [8] On 12 March 2025, Airservices applied to Comcare for an internal review of the Improvement Notice pursuant to s 224 of the WHS Act (Internal Review). Ms Fiona Darrow, an Assistant Director of Comcare was appointed as an internal reviewer under s 225 of the WHS Act. On 7 April 2025, Ms Darrow made her decision on the internal review under s 226(2)(b), being a decision to confirm Inspector Norman's decision (Internal Review Decision).

• [9] On 22 April 2025, Airservices made the External Review Application to the Commission in respect of the decision by Inspector Norman to issue an Improvement Notice and the Internal Review Decision (collectively, the Decisions).

• [10] Airservices's External Review Application sets out various matters relating to the radio communication system, upgrading and testing of the radio system, risk assessment, control measures and the history of the issues and steps under the WHS Act. The application also sets out a summary statement of Airservices' grounds being:

a) there was no proper basis for the Inspector to form a reasonable basis that [Airservices] was contravening a provision of the WHS Act; > > b) the Inspector did not consider all the reasonably practicable measures undertaken by [Airservices] in addressing observed issues with radio communication. As such the scope of the directions in the Improvement Notice fails to acknowledge the proactive and reasonably practicable control measures already implemented by Airservices; and > > c) the Assistant Director in confirming the Improvement Notice has not properly regarded the material provided by [Airservices] in the Internal Review Application ...

• [11] Mr Adams has filed a submission in support of his application under s 590 to intervene or participate. Airservices opposes Mr Adam's application and has filed a submission in respect of its opposition. Comcare has filed a submission in which it indicated it does not support or opposes Mr Adams' application.

• [12] Mr Adams, Airservices and Comcare were satisfied for me to deal with Mr Adams' application on the papers.

The Legislative Framework and the Powers and Function of the Commission in an External Review

• [13] The WHS Act and the FW Act apply to this matter.

• [14] In respect of the WHS Act, I note the following provisions:
  • Section 19 imposes an obligation on a person conducting a business or undertaking to ensure, so far as reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking;
  • Division 3 of Part 5, provides for the determination of work groups of workers and the election of HSRs for those work groups;
  • Section 68 specifies the powers and functions of an HSR including representing the workers in the work group in matters relating to work health and safety;
  • Section 90 empowers an HSR to issue a PIN to a person if the HSR reasonably believes that a person is contravening a provision of the WHS Act;
  • Section 93 provides that the PIN may include directions concerning the measures to remedy the matters the subject of the PIN;
  • Section 100 permits a person issued with PIN to ask Comcare to appoint an inspector to review a PIN;
  • Section 102 provides that after reviewing the PIN, the inspector must confirm, confirm with changes or cancel the PIN and that a PIN which is confirmed (with or without changes) is taken to be an improvement notice issued by the inspector under the WHS Act;
  • Section 191 permits an inspector to issue an Improvement Notice if the inspector reasonably believes that a person is contravening a provision of the WHS Act;
  • Section 223 sets out certain:
• o reviewable decisions which include a decision by an inspector under s 102[2] and a decision under s 191[3]; and

• identifies parties who are eligible persons to apply for a review
• Section 224 provides for internal review of a reviewable decision by a person appointed by Comcare and s 226 requires the reviewer to decide whether to confirm or vary the reviewable decision or to set aside the reviewable decision and substitute another decision that that reviewer considers appropriate; and
• Section 229 provides for an eligible person to apply to this Commission for an external review of a reviewable decision made by Comcare or an internal review decision.

• [15] Under s 229 of the WHS Act, the Commission may do any of the following in relation to the decision to which an external review application relates:
  • confirm the decision;
  • vary the decision; or
  • set aside the decision and make a decision in substitution for the decision set aside.

• [16] An external review by this Commission under s 229 is undertaken by way of de novo hearing. In Delaney v Comcare,[4] Deputy President Slevin reviewed a number of previous authorities and held as follows at [22]:

... I consider that the proper approach to an application under s.229 of the WHS is to regard the review as a hearing de novo. This means that the Commission must consider the matter afresh, allowing the parties to present new evidence and arguments. The FWC stands in the shoes of the original decision-maker and is not restricted to the facts and law that existed at the time of the original decision. The Commission's task is to reach the correct and preferable decision based on the material before it.

• [17] In the conduct of a s 229 external review, the Commission has available to it the powers under Division 3 of Part 5-1 of the FW Act. Division 3 includes the power under s 589 for the Commission to "make decisions as to how, when and where a matter is to be dealt with" and the power under s 590 for the Commission to "inform itself in any matter before it in such manner as it considers appropriate."

• [18] Mr Adams submits that he has an interest in the matter arising from three factors:
  • he is an employee who performs work in the workplace exposed to the risks to health and safety subject of the Internal Review Decision;
  • he is an elected HSR entitled to represent other workers in matters relating to work health and safety, and those workers are subject to the same risks; and
  • as HSR he issued the PIN which ultimately led to the Internal Review Decision.

• [19] Mr Adams makes further submissions about:
  • the nature of the issues likely to be before the Commission on the Internal Review Application;
  • that he is well placed as HSR to provide the perspective of operational employees;
  • he is in a position to assist the Commission in providing first-hand and operational evidence and submissions on matters relevant to the review application including the history of safety concerns, facts leading to the issuing of the PIN, risk mitigation and the extent to which such mitigation may be reasonably practicable; and
  • the granting of the application would be consistent with the manner in which a discretion should be exercised having regard to s 577(1) of the FW Act.

• [20] Airservices opposes Mr Adams' application to intervene and its submission can be summarised as follows:
  • the issue in the proceedings (whether the Inspector had the reasonable belief) has nothing to do with Mr Adams in light of the operation of s 102(3) of the WHS Act and the issue of the Improvement Notice under s 191 of the WHS Act;
  • Mr Adams does not have a right, interest or legitimate expectation that might be affected by the matter and that any indirect or consequential interest does not provide a basis for him to participate;
  • there is no evidence that Mr Adams is exposed to any risk to health safety as a result of the Internal Review Decision;
  • the fact that Mr Adams is an HSR does not provide him with any standing, right, interest or expectation that might be affected by the matte;
  • there is no significance to the fact that Mr Adams issued the PIN having regard to s 102(3) and s 191;
  • any outcome of the External Review Application as to whether reasonably practicable steps can be taken to minimise risk arising from blackspots during radio communications, is not sufficient to permit intervention;
  • the outcome of this matter does not affect any right that Mr Adams has as an HSR or his ability to represent workers within the designated work group for which he is HSR;
  • Mr Adams' decision to issue a PIN has been superseded and replaced by Inspector Norman's decision to issue an Improvement Notice and consequently he was not involved in decision that is the subject of the External Review Application;
  • Mr Adams' cannot provide relevant evidence to the Commission and his views are irrelevant having regard to the issue to be determined in the proceeding, being whether Inspector Norman held a reasonable belief that Airservices was in contravention of the WHS Act;
  • the outcome of the External Review Application does not affect any right that Mr Adams has as an HSR to exercise powers as HSR and nor does it directly affect Mr Adams ability to represent relevant workers;
  • Mr Adams' application can be distinguished from the matter of Delany v Comcare, where Australia Post, the employer was permitted to intervene in an external review application by an HSR of a decision by an inspector to cancel a PIN, because if the PIN has been found valid in Delany, Australia Post would have had to take various steps to improve safety and its rights and liabilities were directly affected;
  • Mr Adams' involvement in the proceeding will unnecessarily protract and complicate the proceeding in a manner inconsistent with s 577 of the FW Act as he has indicated that he will oppose a stay of the Improvement Notice and his participation in the proceeding will add complexity and cost to Airservices and Comcare; and
  • Responsive to a submission of Comcare as summarised below, the fact that Mr Adams would have been eligible to apply for an external review does not lend weight to Mr Adams' application and ignores the effect of s 102(3) of the WHS Act.

• [21] In its capacity as regulator, Comcare does not support or oppose Mr Adam's application but has assisted the Commission by making the following submissions:
• • Section 590 of the FW Act provides the Commission with a broad discretion to inform itself in relation to any matter it considers appropriate, including by inviting, subject to any terms and conditions determined by FWC, oral or written submissions from a person that does not otherwise have a right to be heard[5];

• Comcare recognises the important role of HSRs in representing the workers in relation to health and safety matters;
• the Commission may be assisted by Mr Adams' practical experience of the matters in issue; and
• Mr Adams as HSR was an eligible person who could have sought an external review of the decisions under s 229 of the WHS Act.

• [22] The first matter to consider is whether the Commission is empowered to permit a non-party such as Mr Adams to intervene in proceedings before the Commission. In Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited ('Collinsville'),[6] a Full Bench of the Commission accepted that the FW Act does not provide for intervention in a proceeding before the Commission by a non-party.[7]

• [23] Consequently, Mr Adams' primary application to intervene as party in the External Review Application cannot be granted by the Commission.

• [24] Consequently, it is necessary to determine Mr Adams' alternative application to participate in the External Review Application by giving evidence, cross-examining witnesses and making submissions.

• [25] In Collinsville, the Full Bench, after expressly noting s 590 of the FW Act, considered that a non-party has a right to be heard in a proceeding, if that non-party has a direct (as distinct from indirect or consequential) right, interest or legitimate expectation which is affected by the proceeding.[8] This arises from the obligation of a tribunal to afford natural justice.

• [26] Further, the Full Bench in Collinsville identified at [75] that even where a person does not have a right to be heard, the Commission has a broad power under s 590 to inform itself in relation to any matter in a manner which it considers appropriate and therefore may choose to hear from a person.[9] Mr Adams' submission makes express reference to paragraph [75] of Collinsville, as does the submission of Comcare.

• [27] I will deal with Mr Adams' application to participate in the External Review pursuant to the broad discretion available to me under s 590 as identified in Collinsville at [75].

• [28] The issue in the External Review Application concerns whether or not there is a reasonable belief that Airservices is contravening its obligation under s 19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers and others, the alleged contravention arising from issues concerning coverage of a radio communication system used by ARFFS workers including for emergency incidents. Furthermore, if the Commission finds that the correct or preferable decision is that there is a reasonable belief that Airservices is contravening s 19 of the WHS relating to radio communications at Melbourne Airport, there may be a further issue regarding the terms of any remedial measures to be taken by Airservices.

• [29] I am satisfied in all of the circumstances, that I should permit Mr Adams to participate in the External Review Application.

• [30] I am satisfied that Mr Adams has a sufficient interest in a decision of the Commission in the External Review Application having regard to the scheme of the WHS Act. The WHS Act establishes a scheme for HSRs to represent workers who carry out work for a business or undertaking. The function of an HSR is to represent workers in a workgroup in matters relating to health and safety. Mr Adams is a member and also a HSR for the designated work group of Melbourne ARFFS "A" Crew. That crew use the radio communication system in the course of their work including for emergency incidents at Melbourne Airport. Mr Adams, in his HSR capacity, exercised a statutory right to issue a PIN under Division 7 of Part 5 of the WHS Act. In doing so, Mr Adams identified what he considered to be a reasonable belief of a contravention of s 19 WHS Act concerning radio coverage and gave remedial directions. Mr Adams' act of issuing a PIN was the initial act under the WHS Act which ultimately led to the subsequent steps, in particular the decisions by Inspector Norman to confirm the PIN with changes and issue an Improvement Notice and the Internal Review Decision to confirm Inspector Norman's Improvement Notice. The External Review Application before the Commission has the prospect of varying, confirming or setting aside the decisions of Inspector Norman and the Comcare Internal Review.

• [31] In these circumstances and the for the purposes of an exercise of discretion under s 590, I consider that Mr Adams has a sufficient interest which would be affected by the External Review Application. That interest constitutes at least an indirect interest in the outcome of the External Review Application. It is certainly not a remote interest.

• [32] I do not accept Airservices' submission that the issue in the External Review Application "has nothing to do with Mr Adams in light of the operation of s 102(3) of the WHS and the issue of the Improvement Notice". Section 102(3) provides that that the confirmation of a PIN by an inspector is taken to be an improvement notice issued by the inspector. The operation of s 102(3) or any associated issuing of an improvement notice under s 191 does not negate the interest of Mr Adams in the outcome of the External Review Application. This is particularly so given that the substance of the situation is that Mr Adams' initiating PIN was confirmed (with changes) by Inspector Norman whose decision was in turn was confirmed by the Comcare Internal Review.

• [33] In considering whether I should exercise my discretion under s 590, it is not necessary for me to determine whether or not Mr Adams' has a direct right, interest or legitimate expectation affected by the External Review Application. The issue of whether Mr Adams' interest could be characterised in those terms would be necessary if I was deciding whether Mr Adams' had a right to intervene. However, in the exercise of my discretion under s 590, it is not necessary for me find whether or not he has a direct right, interest of legitimate expectation. This is clear from the observations made by the Full Bench in Collinsville at [75]. I refer also to the observations made by Gibbs CJ (Dawson J agreeing) in R v Ludeke and others; Ex parte the Customs Officers' Association of Australia, Fourth Division:[10]

The Commission has power - which, like other powers to which reference has already been made, allows it a wide discretion - to allow any person or organisation to intervene in any matter, provided that the Commission is of the opinion that it is desirable that the person or organisation should be heard: s 36(2) of the Act. The provisions of that subsection reinforce the view that a person whose rights are not directly affected by a proceeding is not entitled to intervene in the proceeding, although in many cases considerations of fairness may incline the Commission to allow someone who is likely to be indirectly affected by the outcome of the proceedings to intervene in them.

• [34] I am mindful that the observations of Gibbs CJ were made in reference to an express power to permit intervention by a non-party available to the Australian Conciliation and Arbitration Commission under s 36 of the Conciliation and Arbitration Act 1904 (Cth). However, those observations are consistent with the approach in Collinsville regardin_g_ the broad discretion available to the Commission under s 590 of the FW Act to choose to permit a person to participate in a proceeding even if they do not have a right to participate arising from a direct right, interest or legitimate expectation affected by the proceeding.

• [35] In summary, I am satisfied that Mr Adams has a sufficient interest in the outcome of the External Review Application, the nature of which tends in favour of his application to participate.

• [36] I have considered whether Mr Adams' participation would be useful to the Commission in the consideration and determination of the External Review Application. I am satisfied that Mr Adams' participation in the External Review Application would be useful to the Commission. As set out above, the External Review Application is a de novo hearing and the Commission must consider the matter afresh including allowing presentation of new evidence and arguments. I refer also to the issues before the Commission summarised in paragraph [28] above. Mr Adams in his capacity as Lead Aviation Firefighter and in particular as HSR, can by virtue of his practical experience, assist the Commission's consideration of subject matters such as any safety issues arising from radio coverage at Melbourne Airport, the history of any safety issues arising from radio coverage and the effectiveness of risk mitigation and contingency measures. All of these subject matters are likely to be relevant as to whether or not there is a reasonable belief that Airservices is contravening its obligation under s 19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers and others. Furthermore, Comcare submits that the Commission may be assisted by Mr Adams' participation, noting Mr Adams' practical experience of the matters in issue. I accord some weight to that submission as it is made by the relevant regulator. In the circumstances, I do not accept Airservices' submission that Mr Adams' participation in the External Review Application would not assist the Commission.

• [37] I have considered Airservices' submission that Mr Adams's participation will unnecessarily protract and complicate the proceeding and that this would not be consistent with the Commission's function to resolve disputes quickly and informally under s 577(1)(a) of the FW Act. This submission has two aspects.

• [38] Firstly, Airservices submit that Mr Adams has indicated that he will object to a stay sought by Airservices, and which is consented to by Comcare, in respect of the Improvement Notice pending a final decision by the Commission on the External Review Application. Airservices submit that this will add delay and cost by necessitating a formal application and hearing for a stay. I accept that there will be additional costs and potentially delay associated with a stay application and hearing in light of Mr Adams' opposition to a stay.

• [39] Secondly, Airservices submit that Mr Adam's participation will increase the complexity and costs for Airservices and Comcare as they will be required to review and respond to evidence and submission from Mr Adams. Airservices also submit that increased costs and complexity will arise from management of a final hearing involving not just two parties but also Mr Adams. I accept that there may be increased complexity and costs to Airservices and Comcare arising from the participation of Mr Adams in the External Review Application. I do also note that during the conduct of a matter, the Commission has the power under s 589 and/or 590 to limit the extent of participation of a person otherwise permitted to participate under s 590, if their conduct is causing unnecessary or excessive cost or delay.

• [40] I have considered the fairness and justice consideration under s 577(1)(a) of the FW Act. Mr Adams is HSR for the ARFFS "A" Crew work group and he has a function under the WHS Act to represent workers in that work group in relation to health and safety. Having regard to his representative function, I am satisfied that to permit Mr Adams to participate in the External Review Application would constitute the exercise of my discretion under s 590 in a manner that is both fair and just.

• [41] In conclusion, I am satisfied that the balance of considerations is such that I should exercise my discretion under s 590 to permit Mr Adams to participate in the External Review Application. Furthermore, I am satisfied that I should permit Mr Adams to participate in the External Review Application by giving evidence, cross-examining witnesses called by a party and making submissions. Having regard to all of the circumstances, I am satisfied that this scope of participation is the appropriate one, particularly having regard to my finding in paragraph [36] above that Mr Adams' practical experience can assist the Commission's consideration of relevant subject matters.

• [42] An order will be issued to give effect to this decision and a Mention will be listed to deal with the further programming of the matter including programming of the stay application.

[1] HSRs are elected are under Subddivision 4 of Division 3 of Part 5 of the WHS Act.

[4] [2024] FWC 3482.

[5] Comcare refers to Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [75].

[6] [2014] FWCFB 7940 'Collinsville').

[10] [1985] HCA 31; (1985) 155 CLR 513, 520-521.

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