Work Health and Safety Act 2011

s.229 WHS Act - WH&S Review Authority

Airservices Australia Pty Ltd Trading AS Airservices

Interim or procedural decision - Application for stay of Improvement Notice

• [1] On 22 April 2025, Airservices Australia Pty Ltd (Airservices) made an application (External Review Application) to the Commission under s 229 Work Health and Safety Act 2011 (Cth) (WHS Act).

• [2] The External Review Application names Comcare as the Respondent. Airservices seeks by way of final relief the revocation of an Improvement Notice issued by Inspector Komal Norman issued pursuant to s 191 of the WHS Act and the revocation of a decision, by Ms Fiona Darrow (Assistant Director of Comcare) made pursuant to s 226(2)(b) of the WHS Act.

• [3] On 22 May 2025, I made a decision under s 589 and 590 of the Fair Work Act 2009 (FW Act) to permit Mr Jason Adams to participate in the External Review Application by giving evidence, cross-examining witnesses called by a party and making submissions.

• [4] The External Review Application is listed for final hearing on 19 & 20 August 2025.

• [5] This decision is made in respect of an interim application by Airservices dated 10 June 2025 for stay (Stay Application) of the Improvement Notice pending a decision on the External Review application.

• [6] Airservices has filed a submission dated 10 June 2025 in support of the stay application. Mr Adams has filed a submission dated 16 June 2025 and Witness Statement dated 16 June 2025 in opposition to the stay application. Comcare has filed a submission dated 24 June 2025, in opposition to the stay application. The parties and Mr Adams have indicated that they are satisfied for me to determine the stay application on the papers and without a hearing.

• [7] The factual background to the External Review Application is set out in my earlier decision to permit Mr Adams to participate in the External Review Application.[1] For convenience, I repeat those factual matters below:

a) 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. The ARFFS "A" crew is one of four ARFFS crews who operate in rotation across Melbourne Airport;

b) On 22 November 2024, Mr Adams issued a provisional improvement notice (PIN) to Airservices under s 90 of the WHS Act. Airservices' External Review application 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";

1. 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;

d) 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;

e) 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);

f) 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);

g) 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 taken under the WHS Act. The application also sets out a summary statement of Airservices' grounds being:

• there was no proper basis for the Inspector to form a reasonable basis that [Airservices] was contravening a provision of the WHS Act;
• 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
• the Assistant Director in confirming the Improvement Notice has not properly regarded the material provided by [Airservices] in the Internal Review Application ...

• [8] Airservices makes the following submissions in support of its Stay Application:

a) It is required to comply with the Improvement Notice no later than 25 August 2025; > > b) Comcare initially consented to a stay of the Improvement Notice on 6 May 2025; > > c) The Commission has the power to make an interim decision under s 589(2) of the FW Act, subject to statutory limitations imposed on the Commission; > > d) There is no statutory limitation under the FW Act or the WHS Act which limits the power of the Commission to make an interim order that stays an improvement notice issued under s 191 of the WHS Act or a decision made on an internal review under s 226 of the WHS Act; > > e) In determining whether to issue a stay, the Commission must be satisfied whether there is a serious question to be tried and if so, considering whether the balance of convenience favours the granting of a stay; > > f) Establishing a serious question does not mean that Airservices has to establish that it is more probable than not that it would succeed at a final hearing and it is sufficient for an Airservices to show it has an arguable case with some reasonable prospect of success; > > g) The assessment of a serious question and the weighing of the balance of convenience are related inquiries; > > h) In respect of a serious question relating to the decision of Inspector Norman, Airservices has taken reasonably practicable steps to address identified shortcomings in the radio system at Melbourne Airport, having regard to s 18 of the WHS Act; especially so in circumstances where it has, in consultation with its workforce, expended considerable capital to upgrade the radio system from copper wires to fibre optic cable that has improved the radio communications system, so far as is practicable;

1. The Inspector's formation of a reasonable belief that Airservices is contravening s 19 of the WHS Act: 1. was predicated on an erroneous factual assumption that radio communication failures continue to date, resulting in blackspots and increased incidences; and 2. that Airservices is unaware of the basis upon which the Inspector asserted an increase in incidents as a result of blackspots where the available safety data does not support the assertion.

j) That Assistant Director Darrow did not have proper regard to all the material before her on the Internal Review Application, specifically; > > 1. the minor risk that radio communication failures presented in the workplace, as identified in the risk assessment conducted by Airservices, in consultation with its workers; > 2. the reliance on extraneous material that was not part of the risk assessment that erroneously lead the Assistant Director to miscategorise the severity of the risk of radio communication failure; > 3. an impermissible conflation of recommendations made in a report prepared by an external consultant with the scope of reasonably practicable steps; and > 4. the insufficient evidence relied upon by Assistant Director to make a finding that training materials provided to workers were inadequate to implement control measures in the event that radio communication falters; and > > k) if the External Review Application were successful, following the substantive hearing, Airservices would be entitled to a permanent stay of the Improvement Notice pursuant to s 229(3) of the WHS Act;

1. the balance of convenience favours the granting of a stay: 1. as the outcome of the final external review application may not be determined before the present Improvement Notice compliance date of 25 August 2025 as Mr Adams has foreshadowed to Airservices he may be unavailable for the presently fixed hearing dates of 19 & 20 August 2024 ; 2. that if Airservices was ultimately unsuccessful in a final hearing presently listed for 19 & 20 August 2025, Airservices would only have five days to comply with the Improvement Notice, assuming a decision was handed down on the final day of the hearing; 3. the possible scenarios referred to in (i) and (ii) above, would be highly prejudicial to Airservices as: 1. a potential to breach of an Improvement Notice by Airservices would render it liable to a penalty notice and a separate prosecution for non-compliance by Comcare; and 2. Airservices may expend further time and resources to comply with the Improvement Notice to avoid a potential penalty if the stay were not granted and such expenditure may be thrown away if the External Review Application were successful after a final hearing.

• [9] Mr Adams makes the following submissions in opposing the Stay Application:

a) The Commission has no power to issue a stay as s 589(2) of the FW Act is procedural in nature in that it facilitates the exercise of the Commission's substantive powers; > > b) The power to issue interim orders under s 589(2) is constrained by the substantive provisions and source of power in the underlying proceeding; > > c) The substantive provisions and source of power under s 229(3) of the WHS Act sets out what the Commission may do, and none of those matters include a stay of an Improvement Notice; > > d) the WHS Act makes no express provision for a stay of an Improvement Notice on an External Review, which can be contrasted with express provision in the WHS Act for stay of an Improvement Notice on an Internal Review; > > e) the implication of a power to stay an Improvement Notice would be inconsistent with the safety purpose of the WHS Act; > > f) the power of the Commission to give practical effect to the present stay application is limited to making an interim decision under s 589(2) to extend the time for compliance by Airservices with the Improvement Notice; > > g) the test to determine whether an interim decision extending the time for compliance, or if s 589(2) permits the issuing of a stay, is as set out by Airservices, being whether there is a serious question to be tried and whether the balance of convenience favours the granting of a stay; > > h) Airservices' application for a stay discloses an arguable case but the balance of convenience favours no order being made;

1. In reliance on the Statement of Mr Adams, the proposition that the balance of convenience favours no order being made is as follows:

• [10] An interim order staying or extending the time for compliance will result in a continuation of exposure to Mr Adams and other ARFFS workers to an increased risk of radio communication failures;
• [11] The high-risk operations of the work in which ARFFS workers engage is such that if communication failures occur, then the consequences can be severe, including examples of entrapment in the course of fighting a fire;
• [12] The nature of a risk including fighting aircraft fires and use of breathing apparatus is such that lack of effective radio communications entail a risk of death or serious injury;

j) Airservices has not identified any real prejudice that it will suffer by reason of compliance with the Improvement Notice, save for vague references to "time and resources", the duration or quantum of which is not identified; > > k) Any prejudice asserted by Airservices in respect of compliance by 25 August 2025 is misconceived as any refusal of the Stay Application would maintain the requirement for Airservices to comply with the Improvement Notice well in advance of the 25 August 2025 compliance date;

1. Relying on the evidence of Mr Adams, Airservices has not taken any steps towards compliance with the Improvement Notice which means that every day Airservices declines to act towards compliance, is a day that workers are exposed;

• [13] Comcare makes the following submissions in opposing the Stay Application:

a) Section 589(2) of the FW Act does not empower the Commission to grant a stay of an Improvement Notice as the provision is not an independent source of power and is procedural in nature informed by the substantive provision under which an application is made; > > b) Airservices' External Review Application is made under s 229(3) of the FW Act and the forms of relief under that provision do not confer an express power on the Commission to grant a stay; > > c) While the Commission does not have power to grant a stay of an Improvement Notice, it could make an interim decision to pursuant to s 589(2) to vary the date for compliance with the Improvement Notice; > > d) The relevant test for interim relief is whether there is a serious question to be tried and if so, whether the balance of convenience favours the granting of an interlocutory order; > > e) While Airservices' Stay Application discloses a serious question, the strength of that serious question is not strong have regard to the following matters: > > 1. Airservices is under a strict obligation under s 19(1) of the WHS Act to ensure so far as reasonably practicable the health and safety of workers engaged by Airservices or caused to be engaged by Airservices; > 2. The maintenance of effective radio communications for ARFFS workers is critical noting Mr Adams' evidence regarding the importance of effective radio communications for firefighters wearing breathing apparatus during high-risk operations and noting also Airservices own Radio Communications Performance Standards (effective 2020); > 3. The Airservices Risk Assessment RSK-0001121 indicates a failure rate 121 failures over a period of 611 recorded operations, being a failure rate of 20%; > 4. Mr Adams' evidence that Melbourne Airport has multiple blackspots and the radio systems does not provide for complete radio coverage of the Airport; > 5. Risk Assessment RSK-001121 recommended radio frequency mapping to determine areas where reduced areas of reduced / limited communications exist (with specific focus on the terminal and aviation related infrastructure); > 6. Airservices commissioned external consultants, Radlink Communications, to conduct radio frequency mapping and the resulting Radlink Report identified several blackspots; primarily in indoor areas > 7. The Radlink Report recommended, amongst other things, the installation of signal repeaters at identified locations; > 8. Risk Assessment RSK-001121 itself recommended an engineering control measure of adjustment of "the location, setting and/or number of repeaters" to address radio coverage deficiencies; > 9. Airservices has provided no explanation of why implementation of the Radlink Report recommendation is not considered reasonably practicable, especially noting the engineering control measure regarding repeaters in Risk Assessment RSK-001121; > > f) In respect of balance of convenience, the two identified grounds of prejudice to Airservices, should not be given weight by the Commission for the following reasons: > > 1. In respect of Airservices expending "time and resources", Airservices has not led any evidence as to the time and resources and has not explained how any such expenditure will be thrown away in circumstances where it would be incurred to address a significant safety risk; > 2. The potential monetary penalty risk to a corporation is not an issue to which the Commission should have regard; > 3. Mr Adams' witness statement sets out significant ongoing risks to workers (including of death and serious injury) arising from limitations in the existing radio system used at Melbourne Airport; > 4. Given the risk of real and serious risk to workers which arise from radio communication failures, the balance of convenience strongly favours that no interim order be made to either stay the Improvement Notice or to extend time for compliance; and > 5. Airservices has not indicated that it is unable to comply with the Improvement Notice, only that it is reluctant to do so.

• [14] The jurisdiction of the Commission in respect of an external review application arises under s 229 of the WHS Act.

• [15] Section 229(3) of the WHS Act provides that the Commission may do any of the following in relation to the decision to which the application relates:

(a) confirm the decision;

(b) vary the decision; or

(c) set aside the decision and make a decision in substitution for the decision set aside.

• [16] A stay is a form of decision or order which suspends the operation of an underlying decision or order for a specified duration or until a specified event, usually the determination of the final relief.

• [17] The WHS Act confers no express power on the Commission to stay a decision to which an external review application relates. Further, the WHS Act makes no express provision for stay of a decision which is the subject of an external review application under s 229 of the WHS Act. This can be contrasted with the express scheme in respect of a stay of a reviewable decision on an internal review application under s 228 of the WHS Act. In that regard, an application for an internal review of a decision (other than a decision to issue a prohibition notice or a non-disturbance notice) under s 228 of the WHS operates to automatically stay the operation of a decision. In relation to a decision to issue a prohibition notice or a non-disturbance notice, the internal reviewer has a discretion whether or not to stay those types of decisions.

• [18] Consequently, I consider that the WHS Act does not itself confer a power on the Commission to stay a decision the subject of an external review application. A stay is not within the scope of the things that the Commission may do when exercising jurisdiction under s 229(3) of the WHS Act.

• [19] Therefore, it is necessary for me to consider whether the FW Act, in particular s 589(2), confers any power on the Commission to issue a stay in an external review application.

• [20] As was observed by a Full Bench of the Australian Industrial Relations Commission in Australian National Rail Commission v Rutjens:[2]

As a matter of general principle where legislation confers jurisdiction on an established court or tribunal then it may be assumed that the legislature intended to take the court or tribunal as it finds it, with all its incidents.

• [21] The operation of this presumption in respect of the jurisdiction under s 229 of the WHS Act, means that the Commission has available to it powers under Division 3 of Part 5-1 of the FW Act.[3] Consequently, the power to make an interim decision under s 589(2) of the FW Act, is available to the Commission in respect an application under s 229 of the WHS Act. However, it is necessary to properly construe the power available to the Commission under s 589(2).

• [22] In Virginia Wills v Grant, Marley & the Government of NSW (Wills)[4], a Full Bench of the Commission held as follows regarding s 589:

Section 589 is in subdivision B of Division 3 of Part 5-1 of the FW Act which deals with the conduct of matters before the Commission. These provisions are procedural in nature in the sense that they facilitate the effective and efficient exercise of the Commission's substantive powers.

• [23] In reaching this conclusion, the Full Bench at [34] approved the construction of s 589(2) set out in Mayson v Mylan Health (Mayson)[5], where Deputy President Colman held that the general power to make an interim decision under s 589(2) cannot exceed the substantive provision and source of power.

• [24] I note that construction of s 589(2) in adopted in Wills and Mayson occurred in the context of consideration whether s 589(2) authorised the Commission to make an interim order in a stop bullying application made under s 789FC of the FW Act.

• [25] However, I consider that construction of s 589(2) is equally applicable in respect of the jurisdictions conferred on the Commission by s 229 of the WHS Act.

• [26] As I have already noted, s 229 of the WHS Act confers power on the Commission to confirm, vary or set aside a decision and make another decision in substitution of the decision thereby set aside. These powers do not include the power to stay the decision being reviewed.

• [27] Consequently, I consider that the Commission does not have the power to stay an improvement notice pending a decision on an external review application. Therefore, Airservices application for a stay must fail.

Power to Make Interim Decision to Vary Improvement Notice

• [28] However, both Mr Adams and Comcare quite properly note that under s 589(2), the Commission may exercise a power to make an interim decision to vary an improvement notice. Whilst Airservices' stay application did not expressly seek a variation to the improvement notice as an alternative to a stay, both Mr Adams and Comcare have in their submissions addressed the question of the Commission's power to make an interim decision varying an improvement notice and also addressed the test to apply when considering whether to do so.

• [29] In respect of power to make an interim decision under s 589(2) of the FW Act varying an improvement notice, it is clear that such a decision would not exceed the substantive power of the Commission under s 229(3) of the WHS Act, as the substantive power expressly includes a power to vary a decision the subject of an external review application.

• [30] As submitted by Mr Adams and Comcare, an interim decision to vary the Improvement Notice, may give practical effect to a stay application by extending the time for Airservices to comply with notice.

• [31] The principles to apply in considering whether to make an interim decision to vary the Improvement Notice, are the same as those for grant of a stay, had a stay been available. The approach is to first identify whether there is a serious question to be tried and, if so, consider whether the balance of convenience favours making a variation.

• [32] On the matter of a serious question, Airservices must establish that it has an arguable case with some reasonable prospect of success.[6] Airservices need not establish that it is more probable than not that it will succeed at a final hearing.[7] The assessment of a serious question to be tried and the balance of convenience are related inquiries, and each should not be considered in isolation from the other.[8] Further, it may be necessary to consider and evaluate the effect the making of a variation will have on third parties.

• [33] In determining whether there is a serious question, I am mindful that this issue must be addressed in the context that an external review application involves a de novo hearing. Therefore, on a final hearing the Commission will determine the application based on the evidence before it. At the final hearing, the parties are entitled to begin again and call fresh evidence. As was noted by the Full Bench in Rutjens, the conclusions reached by the primary decision maker will be relevant to the determination of the issue before the Commission, but they are not decisive.[9]

• [34] In dealing with the matter afresh at a final hearing, I will have to consider whether I have formed a reasonable belief that Airservices is contravening its duty under s 19(1) of the WHS Act by failing ensuring, so far as reasonably practicable, the health and safety of ARFFS workers and others at the workplace. The precise scope of that question relating to radio communications for ARFFS workers, will depend on the evidence and submissions before me at the final hearing. However, having regard to s 18 of the WHS Act, likely matters to consider will include the nature and risks of the emergency work performed by ARFFS workers, the likelihood of radio communication outages, the degree of harm that might result from radio communication outages, steps already taken by Airservices to reduce the risk of and from radio communication outages, what Airservices knows about the hazard or risk of continued radio communication outages and the availability and suitability of other measures to eliminate or minimise the risk of or from such outages, the availability and suitability of ways to eliminate or minimise the risk of and from radio communication outages and, after assessing the extent of the risk and the available ways of eliminating or minimising the risk, considering the costs associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

• [35] I am satisfied that there is a serious question that Airservices has complied with its obligation under s 19 of the WHS Act. Whilst much of Airservices originating application and stay submission is directed to challenging the conclusions of Inspector Norman and Assistant Director Darrow, including the manner in which they were reached, the material in the External Review Application discloses that Airservices has recently expended considerable capital in upgrading its radio communication system. As set out in paragraph 10(e) above, Comcare, while conceding that Airservices' has established a serious question, submits that the case is not a strong one. These submissions are not without merit. However, in the context of a final hearing being a de novo hearing, my own assessment is that Airservices' case is arguable and could not be characterised weak.

• [36] On the matter of balance of convenience, I do not consider that that the balance of convenience favours a variation of the Improvement Notice.

• [37] Airservices has submitted that it may expend further time and resources to comply with the Improvement Notice to avoid a potential penalty and such expenditure may be thrown away if the External Review Application were ultimately successful. However, it has not provided any evidence of the quantum of cost it would incur or the amount of time it would expend. There is not a satisfactory basis for me to conclude that Airservices would incur significant cost and expense if a variation were not granted.

• [38] In relation to the timing of a final hearing, the present listing of 19 & 20 August 2025 is fixed. The matter will proceed on those dates. Consequently, there is no material prospect of the matter being relisted to a later date. Speculation on a re-listing to a later date does not assist Airservices on the question of a balance of convenience.

• [39] In relation to the timing of a decision consequent on a final hearing, it will be open to me to consider whether I should make an interim decision to vary the Improvement Notice at the conclusion of the final hearing. Under s 589(3), any such interim variation decision could occur on further application by Airservices or on the Commission's own initiative. Consequently, should any prejudice to Airservices materialise from the timing of a final decision, there remains open to it a means to seek alleviation of such prejudice.

• [40] The prospect that Airservices, as a corporation, may face risk of penalty or separate prosecution is not a material consideration which presently tends in favour of granting a variation. In any event, that risk has not presently crystallised as Airservices will have a further month to comply with the Improvement Notice. Furthermore, to the extent that this risk becomes material, Airservices can renew its application for an interim variation during the final hearing.

• [41] Mr Adams and other ARFFS workers are formally third parties in relation the External Review Application. However, given the subject matter of the application, I consider that it is appropriate to consider the prejudice to Mr Adams and other ARFFS workers if a variation were granted. The main object of the WHS Act in s 3(1)(b) is to secure the health and safety of workers by, amongst other things, protecting workers and others against harm to their health, safety and welfare. In that regard, the directions made under the Improvement Notice set out actions Airservices must take to remedy risk for ARFFS workers from radio communication failures. In his witness statement filed in opposition to the Stay Application, Mr Adams recounts that the radio system at Melbourne Airport has multiple blackspots and does not provide for complete radio coverage at the Airport. Mr Adams says that effective radio communications are essential for firefighting response including when wearing breathing apparatus. Mr Adams further says that in the course of fighting a fire in an aircraft, or within an airport building, radio failure can lead to serious injury or death. In assessing the balance of convenience, these matters are such that they tend against making such interim variation as it may prolong a period of risk to ARFFS workers from potential radio communication failures.

• [42] In all of the circumstances, weighing the strength of the serious question together with the balance of convenience, I am not satisfied that I should vary the Improvement Notice to extend the time for compliance.

• [43] Having regard to my conclusion on the absence of power to grant a stay and my further conclusion regarding whether or not I should vary the date for compliance in the Improvement Notice, I will dismiss the Stay Application. An order to this effect will be issued together with this decision.

[1] [2025] FWC 1424.

[2] Australian National Rail Commission v Rutjens ( 1996) 66 IR 237 at 251.

[3] Delany v Comcare [2024] FWCFB 3482 at [22].

[4] Virginia Wills v Grant, Marley & the Government of NSW [2020] FWCFB 4514 at [53].

[5] Mayson v Mylan Health [2020] FWC 1404 at [23] & [26]

[6] See McCain Foods v AMWU [2022] FWC 2358 at [6].

[7] See Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [65]- [72]

[8] Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [67]

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