Arnott v SafeWork NSW & Anor

Industrial Relations Commission (NSW)|2023-06-28

decision

This is an application to the Industrial Relations Commission (Commission) for external review, pursuant to s 229 of the Work Health and Safety Act 2011 (WHS Act).
External review pursuant to s 229 of the WHS Act is the final process for merit review of several notices which can be issued pursuant to the WHS Act. In this case, the original notice was a provisional improvement notice issued by the applicant pursuant to s 90 of the WHS Act (the PIN). The PIN was issued by the applicant to the second respondent, Fire and Rescue NSW, on 4 November 2022.
The second respondent requested that the first respondent, SafeWork NSW, review the PIN. John Whatman, an inspector employed by the first respondent, reviewed the PIN and, pursuant to s 102 of the WHS Act, determined to cancel the PIN by a decision made on 16 December 2023 (original decision).
After receiving the original decision, the applicant applied to the first respondent for an internal review of the original decision, pursuant to s 224 of the WHS Act.
Ms Joanne Cocks, an employee of the first respondent, conducted an internal review of the original decision and, by a decision of 17 January 2023, determined to uphold the cancellation (internal review).
The applicant seeks to have the Commission determined the external review by reinstating his original PIN.

Jurisdiction

Towards the end of oral submissions, the second respondent raised the question of the jurisdiction of the Commission to determine this review. The Commission understood this to be a question about whether there can be a valid original decision, valid internal review and thus a valid external review in circumstances where there is a challenge to the validity of the PIN.
At its highest, the issue raised by the second respondent could challenge the validity of the PIN. That may result in there being no provisional improvement notice which an inspector could review to arrive at the original decision.
Presumably, this would flow through to there being no original decision which could have resulted in an internal review and thus no matter which could be taken to external review.
The second respondent was afforded an opportunity to provide written submissions after the conclusion of oral submissions, and a time thereafter was set for any response from the applicant or the first respondent.
In the event, the second respondent filed submissions, the sum of which was that the Commission had jurisdiction to determine the external review.
Unsurprisingly, neither the first respondent nor the applicant chose to file any submissions in reply.
The Commission is left with the applicant having made an application on the basis that he asserts he issued a valid PIN, and thereafter followed the process summarised above at [2] - [6] for merits review of such a notice.
The first respondent made no submissions at any point suggesting a lack of jurisdiction for the Commission to determine the external review.
The second respondent question the existence of jurisdiction, and then made submissions asserting that there was indeed jurisdiction for the Commission to conduct the external review.
Examining the division of the WHS Act concerning the issue of provisional improvement notices reveals no process to challenge the validity of such a notice. There is only a process to challenge the correctness of such a notice. The process already noted for merits review through internal review and external review similarly contains no process to challenging the validity of a provisional improvement notice.
In summary the Commission has at least the applicant and second respondent positively asserting jurisdiction, and no legislative basis on which the Commission could address the validity of a provisional improvement notice.
To the extent that it is necessary for the Commission to address the question, it is apparent to the Commission that the legislature intended merits review to be the primary remedy for any provisional improvement notice objected to by the recipient.
In the circumstances, the Commission considers that it has jurisdiction to conduct merits review and determines that it will conduct that review.

The legislation

Section 229 of the WHS Act provides that: 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of - (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made - (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.

Submissions of the parties

The first respondent submitted that: "7. The resolution of an application for external review under s 229 of the WHS Act involves a merits review of the decision under review. … 8. In [Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009] Commissioner Newall held at [28]: "Consistent with the conduct of a de novo hearing, I proceed on the basis that the Commission is to come to the decision that it thinks correct and preferable in relation to the initial decision made by the inspector. That will in practical terms mean that the Commission decides the issue between the parties agitated under, in this case, s 72 of the Act. I now turn to that section." 9. The External Review is not an appeal or a matter in which the IRC has to determine whether there was error in the internal review decision. 10. In determining what order to make the IRC stands in the shoes of the decision-maker. The IRC has to determine the correct or preferable decision having regard to all the evidence before it." [First respondent's Outline of Written Submissions, 23 March 2023]
These submissions were not controversial, although as will be seen in considering the submissions of the applicant and second respondent they do not grapple fully with one aspect of the Commission's consideration which is the subject of some divergence in prior decisions of the Commission.
The applicant's submissions were that: "19. In the present matter, the Commission must stand in the shoes of Ms Joanne Cocks, Coordinator, Reviewable Decisions Unit, Regulatory Engagement, in SafeWork and determine on the evidence before it what the correct and preferable decision is. As the authorities set out, identifying error in the decision being impugned is not necessary. However, it is submitted that where error is disclosed that would be a significant factor in persuading the Commission to uphold the application for review. 20. As was noted by Chief Commissioner Kite in Growthbuild Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002 at [36], there is a difference of opinion between members of this Commission on what weight, if any, should be accorded to the reasons for decision on the internal review. In RFS v Safe Work at [72], Kite AJ expressed the view that reasons for decision on an internal review were relevant and should be accorded appropriate weight. In Sydney Trains v SafeWork NSW [2017], Commissioner Newell took a different view at [22]-[26]. This issue did not arise for consideration in Growthbuild. 21. Given the embrace by the Full Bench at [44] of its decision in TWU v SafeWork of the reasoning of Commissioner Newell in Sydney Trains at [23], [26] and [28], and the logic of the Commissioner's reasoning in that matter, it is submitted that the reasons for decision on an internal review do not carry any weight in an external review as "The Commission conducts a hearing de novo and engages in a full consideration of the matter, with all matters being considered afresh." However, unless disavowed those reasons may provide the Commission with insight into the case of one or more parties to an external review and as a consequence those reasons may still need to be discussed." [Applicant's Outline Submissions, 1 March 2023. Emphasis in original]
The respondent's submissions were that: "8. The test for such process has been discussed previously although perhaps not finally decided. The applicant submits at AS 15 that: There is no need for an applicant for external review to establish error in the decision-making process: Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009 at [23], [26] and [28] per Newall C; TWU v SafeWork at [45]. 9. On the basis of TWU v SafeWork, that conclusion is correct. There is one slight qualification. As Cmr Muir held in Killen v SafeWork NSW and NSW Rural Fire Service (No 3) [2022] NSWIRComm 1017 at [13]: In their totality, the decisions cited by both parties are authority that the Commission may consider any reason or logic articulated by the original decision maker or the decision-maker on internal review, but that the Commission is unconstrained by either of those decisions. 10. That conclusion appears correct. It would be difficult to understand why the Commission would be given power to confirm, vary or revoke the decision concerned if the Commission was unable to consider the reasons for decision. 11. Accordingly, the reasons given by the Inspector for issuing the notice are relevant although not determinative." [Respondent's Outline Submissions, 23 March 2023. Emphasis in original]

Task of the Commission

The Commission does not consider that the admitted difference in emphasis between decisions of the Commission in external reviews presents significant difficulty in understanding the task of the Commission.
The task of the Commission is to remake the decision of Ms Cocks, without the need to find error in that decision, or focusing on whether there are errors. If the Commission considers that there are errors in the decision at internal review, that might become a factor in the Commission's decision.
Similarly, the Commission does not start from a position where the internal review is presumptively correct. If the Commission considers that the logic of Ms Cocks was sound the Commission may be persuaded to adopt that logic as its own.
The Commission should determine the external review by arriving at the decision the Commission considers to be the correct and preferable one. The Commission stands in the shoes of the original decision maker in reaching that conclusion and has the same powers as the original decision maker, subject to the legislation governing the different reviews.
Pursuant to s 229(4) of the WHS Act, on external review, the Commission may "confirm, vary or revoke the decision concerned".
On internal review, pursuant to s 226(2) of the WHS Act: (2) The decision may be - (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.
It is apparent that the power of the internal reviewer, pursuant to s 224(2)(b) is broader than the power of the Commission to "vary", not least because paragraph (b) is counterposed to "vary".
The Commission approaches "vary" as conveying a power to do more than simply restoring the original PIN, but only closely within the confines set by the PIN. This includes, for example, clarifying ambiguities, or resolving procedural gaps identified through the external review.
This will confine the Commission to upholding the internal review, or restoring the substance of the PIN, or separable parts of it, with consideration of minor corrective variation.

Evidence

Two witness statements from the applicant were tendered. The first setting out his case, and the second responding to the statements filed by the respondents.
The first respondent tendered witness statements from two witnesses: 1. John Whatman, the inspector who made the original decision; and 2. Joanne Cocks, the person who conducted the internal review.
The second respondent tendered one witness statement, that of Luke Unsworth, an employee of the second respondent who held the title Superintendent of Operational Safety.
The applicant and Superintendent Unsworth were required for cross examination. Mr Whatman and Ms Cocks were not required for cross examination.

The applicant's evidence

From his first witness statement, the relevant portions of the applicant's evidence was: "6. On 30 October 2022, I wrote an email to my line management at Fire and Rescue NSW (FRNSW), including Superintendent Garry Tye and Director of Work Health and Safety Alison Donohoe, informing management that as an elected HSR, I was giving notice of my intent to conduct a series of inspections within the workgroup starting six days after the email."
The substance of that email was: "Hi all Under S68(2)(a)(i) of the Work Health and Safety Act, I give notice that I will be conducting a series of inspections at stations across MN to, per S68(1)(b) of the Work Health and Safety Act, monitor the measures being taken by FRNSW to comply with the Act, and S68(1)(d), to inquire into potential risks to the health and safety of workers. Todd & Darren, it would be great if you had the time to join for any or all of them. We spoke about doing these inspections a long time ago. I go on leave for a couple of months in early 2023 so I'd like to get them done before then. l intend on sending an email to the MN3 Captain & SO email groups tomorrow afternoon advising the below schedule. I will utilise a move-up key so will not require the attendance of the SMTs, but if ZMT, SMT or Health & Safety Branch want to be in attendance, I would be comfortable with that occurring. Any issues please advise otherwise I will hit send tomorrow afternoon. Thanks Giacomo"
Set out under that narrative in the email was a list of 13 sites for inspection over 5 specified dates.
The applicant's first witness statement then set out: "8. In the 30 October 2022 email, I identified that I was relying on the power identified in s68(1)(b) of the Act in deciding to conduct the inspections. … This section of the Act states: 'The powers and functions of a HSR for a work group are 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'. 9. In the 30 October 2022 email, I further noted that I was relying on the power identified in s68(1)(d) of the Act in deciding to conduct the inspections. … This section of the Act states: 'The powers and functions of a HSR for a work group are 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'. 10. In the 30 October 2022 email, I invited the other HSRs in the workgroup to attend and stated that I would be comfortable with members of the Zone Management Team (ZMT) - which consists of the Inspectors and Superintendent - and the Health and Safety Branch attending if they wished to do so. The email concludes with a list of stations and proposed times for visits. 11. On 31 October 2022 at 10:01 AM, HSR Station Officer Todd Amos responded … 12. HSR Amos did not say that he had any plans or intent to conduct station inspections himself. He did not subsequently indicate to me any such plans. 13. On 31 October 2022 at 3:1 5PM, Superintendent Tye sent an email, in which he stated that 'at this time you have not consulted with Zone Management in relation to these inspections and therefore they are not approved. As a HSR you do not have any delegation to incur HSR related costs, hours or approve payments or travel, delegation and approval resting with the Zone Commander.' 14. Superintendent Tye also stated that he would be asking HSR Amos to 'complete inspections as part of the project work assigned to him during his rehabilitation and eventual transition back to full duties'. 15. On 31 October 2023, at 4:56PM, I emailed Superintendent Tye and outlined my plans for the inspections. I also noted various provisions of the Act and how I believed his email was in contravention of those provisions. I concluded by stating that I would be continuing with the inspections." [Emphasis in original.]
The substance of the applicant's 31 October 2022 email was: "Hi Sir My plan was for a general compliance check for issues relating to, among other things, electrical safety, clean and dirty area separation, diesel particulate, decontamination spaces, PPC storage, etc. I will be ensuring compliance with the Act, Regulations, building standards and any other codes of practice applicable to FRNSW that relate to the safety of workers. The WHS Act does not require that I consult with anyone prior to undertaking any of the visits, only that I provide 'reasonable notice' prior to conducting an inspection. The WHS Act does also not provide FRNSW with any capacity to reject such a request. I believe I have provided more than reasonable notice and if that is challenged I am sure Ms Donohoe will be able to chat with SafeWork for a solution prior to the first visit on Saturday. The WHS Act at S70(2) notes that 'the person conducting a business or undertaking must allow a health and safety representative to spend such time as is reasonably necessary to exercise his or her powers to under this Act'. S70(3) of the Act notes that 'Any time that a health and safety representative spends for the purposes of exercising his or her powers or performing his or her functions under this Act, must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period'. I have emphasised 'must be' and 'must allow' to reiterate that these FRNSW duties are not optional or able to be ignored. I intend on fulfilling my duties under the Act and will go ahead with the inspections, as I do not believe you have issued a lawful direction by 'not approving' my proposed activities, and if you reject timesheets related to my HSR duties I will refer that to SafeWork and they can work through it, but FRNSW's obligations to accommodate HSR work is clear in the Act as I have outlined above. I am sure that between mine and Todd's visits, we will have a full understanding of HSR issues in MN and be able to work through any such issue going forward. I have CC'd the FBEU for their information. Thanks for coming back to me. Giacomo" [Emphasis in original.]
The applicant's first witness statement then set out: "16. On 1 November 2022 Superintendent Tye emailed back, reiterating his thoughts on the Act. The Inspections 17. In my role as a Retained Firefighter, Industrial Officer with the FBEU, and as a HSR, I became aware of WHS issues and likely breaches at fire stations within my workgroup. I was also informed of potential breaches by members of the workgroup. I wanted to identify and list these issues so that the PCBU could take action to ensure that they were providing safe workplaces for my colleagues. 18. Prior to the inspections, I developed a 'Google Form' which listed all of the relevant WHS requirements of the employer, with sections for me to tick whether I believed that those requirements were being complied with at a given worksite. 19. On 5 November 2022, I attended Salamander Bay Fire Station at 10:00AM. The station's Captain was in attendance. We spent approximately an hour and a half walking through the station completing the Google Form. 20. During my visit to Salamander Bay Fire Station, I identified the following WHS issues, which in my view constitute breaches of the Act and/or Regulations - which is not a full list but a sample: Personal Protective Equipment (PPE) was stored in an area impacted by diesel particulate matter - Inadequate signage indicating transitions from clean & dirty areas - Women's and men's locker room co-located - No toilet airlocks - No separate women's toilets - Water stains on ceilings - Sagging in ceilings - External & internal lighting not working - First aid kit obscured, items out of date, missing items - Evacuation plan failed to show all parts of the site - No safety data sheets for foam - Foam located in area with excessive heat - No hazardous chemicals register" [Emphasis in original.]
Thereafter in his first statement was set out similar details for visits over 5, 6 and 13 November 2022 to the following locations: 1. Raymond Terrace Fire Station; 2. East Maitland Fire Station; 3. Morpeth Fire Station; 4. Maitland Fire Station; 5. Rutherford Fire Station; 6. Metro North 3 Zone Office; and 7. Braxton Fire Station.
The applicant's first witness statement then set out: "35. At 10:37PM and 10:47PM on 8 November 2022, I created my timesheets for the 5 November and 6 November station visits in the FRNSW Timesheet system. The timesheets have since been deleted by persons unknown, so I am unable to provide the specific rejection reasons contained with the timesheets. 36. Superintendent Tye sent an email on 10 November 2022 noting that he had rejected the timesheets, in which he stated 'today I have rejected all claims for 5-6 November', and that 'despite powers you may have invoke as a HSR under the WHS legislation you do not have FRNSW delegation to incur any hours or costs without prior approval'. He concluded with, 'to be clear you are not approved or required to undertake any further station inspections as Todd is not available and I will not approving any claims you make related to station inspections.' … 38. The other proposed workplace inspections set out in my email of 30 October 2022 did not occur, due to the actions of Zone Commander Superintendent Garry Tye … . … Provisional Improvement Notice 40. On 18 November 2022, I emailed Ms Alison Donohoe, noting that per s90(3) of the Act, I am required to consult prior to issuing a PIN. I noted the basis for why I planned on issuing a PIN and I provided until COB 21 November 2022 for a resolution to be provided." [Emphasis in original.]
The applicant's email of 18 November 2022 set out: "Hi Alison Per S90(3) of the Act, I am required to consult you prior to the issuing of a PIN. I intend on issuing a PIN in relation to the direction from Mr Tye on behalf of the PCBU, to me as a HSR, prohibiting me from performing my duties under the Act. I believe that this is, per S90(1) of the Act, a contravention of the Act. I intend on issuing a separate PIN in relation to the refusal of Mr Tye on behalf of the PCBU, to approve my timesheets which were generated and submitted as a result of me undertaking my HSR duties. The PCBU is required, per S70(3) of the Act, to provide a HSR with the pay they would ordinarily be entitled to while performing HSR duties. It is unlawful for the pay to be withheld as has occurred and, per S90(1) of the Act, is a contravention of the Act. As you will see from the below email chain, I gave notice of inspections per S68(2)(a)(i) of the Act on 30 October 2022. Since then, I have been given what I see as an unlawful order to not conduct the inspections, which are authorised under S68(1)(b) of the Act. There is also written confirmation of a refusal to process timesheets for the pay. If you are unable to resolve this matter by COB 21 November 2022, will go ahead and issue both PINs. I will email SMTs informing them that I will be cancelling the inspections planned for this weekend and if this remains unresolved, I will look to doing the same thing next week for that weekend's visits. Thanks Giacomo"
The applicant's first witness statement then set out: "41. On 21 November 2022, Ms Donohoe emailed to say that 'given there seems to be different interpretations of the requirements of the Act in this regard, we have submitted a RFS to Safework NSW to assist in clarifying the matter'. 42. I determined that this response was not adequate to resolve the matter, so I issued a PIN on 24 November 2022. In the PIN, I outlined that it was being issued due to a breach of both s68(2)(a) and s70(3) of the Act, relating respectively to the power to perform inspections, and the failure to approve timesheets. The PIN had a compliance date of 2 December 2022." [Emphasis in original.]
The PIN set out that: 1. The PIN was issued by the applicant; 2. The PIN was issued to the Commissioner of Fire and Rescue NSW, through Alison Donohoe; 3. The recipient was both: 1. contravening s 70 of the WHS Act; and 2. had contravened that section in circumstances that made it likely that the contravention will continue or be repeated; 1. The identified contravention was: "I performed station inspections in line with the WHS Act and Zone Commander Garry Tye has refused payslips for work performed, which contravenes 70(3). The contravention is ongoing as I have not been told it will be approved, and that any future station inspections will not have their associated pay approved" 1. Measures identified to remedy or prevent he contravention or likely contravention was: "Approves pays, rescind direction to not perform station inspections, inform HSRs that they will be paid for HSR work per s70(3)" 1. The date for compliance was 2 December 2024, being 8 days after the notice.
The applicant's first statement then set out: "43. On 29 November 2022, Ms Donohoe emailed to say that the PIN had been referred to Safe Work per s100 of the WHS Act."
The remainder of the applicant's first statement set out details of his involvement in making representations through the process of the original decision and the internal review, and in particular his concerns that those representations were not adequately taken into account.
Because of the nature of external review those matters are unnecessary to set out or have regard to. The Commission does not need to find error in the internal review nor do the reasons for the internal review carry any special weight in the Commission's determination.
The applicant's second witness statement catalogued objections by the applicant to matters set out in the witness statements of Mr Whatman, Ms Cocks and Superintendent Unsworth. It was extensive but largely irrelevant to the Commission's consideration because in it consisted almost entirely of legal propositions or arguments.
Most of the genuinely factual matters set out in the second statement again related to the process for consideration leading to the original decision or internal review decision. As already observed, these are not relevant to the Commission's consideration.
The one matter set out in the applicant's second statement potentially of relevance was his evidence that: "15. … I have a Bachelor of Laws, a Diploma of Legal Practice, have worked for three years as a Union industrial officer in this same industry, and have a strong knowledge of legislation and how to read, understand, and interpret it. These skills and experiences have enabled me to work through the WHS Act and identify breaches. They have also enabled me to see that when I am monitoring compliance with the Act, I am to do so against the WHS Act, not internal policies and procedures."
This background of the applicant may be relevant in considering whether the applicant had properly considered the issues in conducting inspections, and issuing the PIN.

Cross-examination of the applicant

During cross examination by Mr Latham, counsel for the second respondent, the applicant agreed with a number of propositions put to him including: 1. The consequences of a failure to comply with a provisional improvement notice are serious so precision in the detail of a PIN is important; 2. He received payslips for the relevant periods, and his real substantive complaint was that he was not paid for the time spent conducting safety inspections; 3. Had he not been conducting inspections it was unlikely that he would have been paid on the dates of the inspections, other than his retainer; 4. His notice to the second respondent of his safety inspections relied only on ss 68(1)(b) and (d); and 5. Many of the safety breaches he identified as of concern were not especially urgent.
The applicant directly disagreed with a number of propositions put to him including: 1. Rejecting the suggestion that the second respondent had adequate budgets and processes to manage work health and safety risks; and 2. Denying that his safety inspections had caused him to be unavailable for his award mandated minimum required hours as a retained firefighter.
The applicant's evidence was that he had no idea whether Superintendent Tye's assertions that no one else had raised safety issues with Superintendent Tye was correct.
When asked if he had read each of the documents referred to in Superintendent Unsworth's statement, the applicant's evidence was that he had attempted to read them but a number of the documents were no longer available on the intranet, including some documents which apparently should have been available but which had broken links.
The applicant was cross-examined as to the meaning of "monitor" with the apparent intent that he should agree that monitor would have a narrow meaning. The answers were not especially illuminating, particularly when the meaning to be ascribed to words in the WHS Act are a matter for determination by the Commission rather than evidence from any witness. The following extract from the transcript sufficiently captures the issues canvassed during cross examination. "Q. Are there any other measures that you can think of? A. To measure-- Q. To monitor compliance? A. Absolutely. So, I think the HSRs performing their station inspections is a really good way to monitor. As I outlined in my first statement, there were a large number of things that I identified that weren't actually being adhered to through the WHS Act, including evacuation diagrams not being in place, first aid kits not being properly equipped, first aid kits being hidden and all of these things are informed by legislation. So, Fire and Rescue has a requirement to adhere to that legislation and that list I just provided was far from exhaustive, I should say. Q. Well, we might be at cross purposes here, Deputy Captain. I'm talking about measures to monitor compliance and I think you accepted that having a regular inspection process would be one of those measures? A. If it was an adequate inspection process, yes. Q. I accept that. Now, Fire and Rescue had a regular inspection process, didn't it? A. You'll have to be more specific, Mr Latham. Q. Well, there was a regular WHS inspection process for fire stations in Fire and Rescue, wasn't there? A. There was or there still is a station inspection component of the ORP, which is the operational resourcing program. However, my comment about that being adequate applies specifically to this, because I don't believe it is adequate. Q. Was your complaint that Fire and Rescue needed to update its inspection regime? A. I would have no objection to an inspection regime being updated, however, my issue was whether that inspection regime was actually identifying the issues of stations and whether those issues were actually being fixed, and that's what I was aiming to monitor, among other things. Q. Well, hang on. You weren't monitoring anybody inspecting these fire stations, were you? A. I monitored myself doing it in previous years and I monitored the inadequate response from Fire and Rescue. Q. Sorry, you were monitoring yourself? Is that what you said? A. That is one person who I've monitored doing it, yes. Q. So, what you were doing in your inspections was monitoring yourself? A. Well, sure, I inspected Raymond Terrace Fire Station, so the outcome of Fire and Rescue's receipt of the workplace inspection that I did, I think about a year prior, certainly is something that I was monitoring." [Transcript 18 May 2023, line 11, page 26 to line 7, page 27.]
The applicant agreed that he was looking at "potential" health and safety breaches, rather than "apparent" breaches, the latter being the adjective used in the WHS Act. Given the way in which the cross examination unfolded, and the fact that the applicant did not have the WHS Act in front of him and was not taken to it in the process of cross examination, the Commission does not consider anything falls from this concession.
The applicant was cross-examined as to his ability to identify work health and safety risks in the context of building code non-compliance. It was suggested to him that identification of such issues was beyond his capacity or expertise and therefore an inappropriate basis on which he could purport to rely to exercise his powers pursuant to s 68 of the WHS Act.
The applicant rationally conceded that some of the WHS concerns held by him were less serious, but he was able to rationally articulate how some building layout issues would, even to a layperson, constitute a relevant WHS issue which would be properly of concern to an HSR.
It was clear that the applicant genuinely believed that each of the issues raised by him was a WHS issue important enough to be raised with his employer.
Importantly, his evidence supports the conclusion that, at large, the WHS issues raised by him were ones which would be objectively serious enough to be raised by an HSR behaving properly.
Mr Latham took the applicant to the timeline between the applicant's asserted attempt to consult as to the issuing of the PIN and its eventual issue. Mr Latham pointed to the email seeking feedback from the second respondent having been sent on Friday with an expected response date of Monday, and to the wording of the email, suggesting that in total the email was more an ultimatum than a consultation.
The applicant pointed to waiting a further three days after his original deadline, and to the fact that the second respondent operates a 24-hour, seven day a week service. This the applicant said meant that rather than being one business day, his original timeframe gave the second respondent three business days.
Mr Latham also took the applicant to his having issued the PIN in the face of the second respondent advising the applicant that they had referred the proposal to issue the PIN to the regulator, the first respondent. The applicant's evidence was that he took the referral to the first respondent as amounting to a refusal to engage in consultation with him about the PIN.
The applicant's position was sending a draft provisional improvement notice, under cover of an email which said, effectively "I propose to issue this unless you get back to me by certain date" and making no further effort on his part to contact the respondent, amounted to consultation.
The second respondent's submissions that the applicant was constantly an advocate in his own case rather than giving evidence and was evasive and prone to commentary is true to an extent but in the Commission's view overstated. It is true that the applicant was argumentative to a degree, but it is also true that this was often the product of the nature and tone of questions put to the applicant which succeeded in eliciting that response.
Substantial parts of the cross examination went to the applicant's view as to the interpretation of matters which are properly now for the Commission to determine.

The first respondent's evidence

The evidence of Mr Whatman and Ms Cocks, while important in establishing the sequence of events which led to the application for external review do not need to be recited, as the matters set out there in fall into one of two categories: 1. Uncontentious details as to the timelines and the outcomes of the original decision and internal review; or 2. Consideration and conclusions as to the reasons for the original decision and the internal review which were in the event identical to those advocated by the second respondent.
To the extent that the evidence of Mr Whatman or Ms Cocks set out consideration of the applicant's submissions to them, it is similarly identical to the position adopted by the applicant in the proceedings in the Commission.

The second respondent's evidence

The second respondent did not lead evidence from Superintendent Tye, nor did it challenge the applicant's evidence as to the interactions between the applicant and Superintendent Tye. These interactions are set out in the emails attached to the applicant's first statement. The Commission proceeds on the basis that those interactions were as described by the applicant.
Superintendent Unsworth gave evidence about the second respondent's safety management system, setting out in his witness statement: "FRNSW Safety Management System 12. FRNSW has a Safety Management System which provides the basis for a systematic approach to the management of health and safety risks within the organisation. 13. The attached document (Be Safe Health and Safety Management System) lists the policies and procedures that are formal components of the Safety Management System. There are also a broad range of supporting documents such as Safe Operating Guidelines, Recommended Practices, Guideline Support Documents, Safety Bulletins, Hazard Alerts, Station Inventory Management Checklists, In Orders, etc, that ensure safety management is operationalised. 14. Each policy, procedure or supporting document will have specific measures that enable FRNSW to eliminate or minimise health and safety risks. A HSR could reasonably be expected to monitor the measures identified in any of the relevant documents to ensure they remain effective at eliminating or minimising risks to workers health and safety. 15. [Listed 13 written polices and described the aspects of that policy which an HSR could in his opinion monitor.] FRNSW Property Services 16. Within FRNSW Strategic Capability Directorate, the Property Services Unit is responsible for and the holistic management of all FRNSW property assets including ensuring FRNSW facilities are fit for purpose. The Property Services team delivers quality, efficient and effective property solutions that provide frontline fire stations, firefighter training facilities and office accommodation backed up by ongoing service and maintenance. 17. Key areas of work for the Property Services Unit include; acquisition and disposal of new and old sites, strategic planning and management for the construction of new buildings and major refurbishments, a property helpdesk, a repairs and maintenance team that manages minor property works across the State, management of property insurance claims, all residential and commercial leasing and significant property compliance work to meet all statutory and regulatory and legislative property codes. Annual Workplace Inspections 18. The annual workplace inspections aim to reduce the number of safety incidents by identifying and controlling a broad range of potential hazards in FRNSW owned or leased workplaces. 19. In Orders 2009/25 Annual Workplace Inspections contains instructions about how the inspection process is to be completed. It also specifies that Zone Commanders and Managers are to ensure that each FRNSW owned or leased workplaces is inspected by 31 May each year. The inspection is done by working through the relevant inspection form. 20. In 2022, for the Metropolitan North 3 work group (for which Mr Arnott is a HSR), all of the annual workplace inspections were completed in either April or May 2022 in compliance with In Orders 2009/25." [Emphasis in original.]

Cross-examination of Superintendent Unsworth

A substantial part of the cross examination of Superintendent Unsworth involved questions as to Superintendent Unsworth's understanding of legal obligations under the WHS Act, the relevant award applying to retained firefighter's and related regulations. Superintendent Unsworth's opinions as to these do not bear on the Commission's task, and so not need not be set out here.
Relevantly flowing though from those questions was Superintendent Unsworth's evidence that there is a tension between the rights and powers of an HSR under the WHS Act and various other acts including those setting financial controls over the expenditure of government authorities such as the second respondent.
Superintendent Unsworth's evidence was that he was concerned about the proper expenditure of public money and that money given by executive government to the second respondent should be spent carefully. Superintendent Unsworth should not be criticised for this approach; he should be commended. Whether an obligation to engage in careful expenditure of public money can allow a government entity to avoid other obligations is not really answered by this evidence.
The same can be said of Superintendent Unsworth's evidence that, under the schemes established by the second respondent, an HSR will not, as an attachment to such an election, be granted a financial delegation. With respect to the Superintendent, while the proposition may be correct it avoids the question which the Commission must determine.
An obligation on the second respondent, if found to exist, to pay an HSR for time spent conducting HSR duties and obligations, if they would otherwise not be paid, is not the exercise by an HSR of a financial delegation. An appropriate human resource officer will in such circumstances need to exercise their financial delegation to authorise the payment which the law requires.
The following extracts from the cross-examination fairly captures the evidence of Superintendent Unsworth during cross-examination as to his views of balancing the competing interests: "Q. Okay. Can I ask you what happens in the circumstance where a health and safety rep believes that they need to fulfil their functions and none of those persons, you know, in your memo are prepared to authorise it? Is it the position of Fire and Rescue that they simply cannot or should not exercise those functions? A. Yes. Obviously, as with any work health and safety function, there is an issue resolution process so Fire and Rescue NSW has a quite clearly articulated work health and safety issue resolution process so that would obviously be applied. There is also the default procedure for issue resolution which sits within the work health and safety regulations. So obviously both of those mechanisms at various points in time could be activated to try to resolve that impasse if one should arise, but I mean I think, you know, with any of these types of matters at the end of the day we want to have a reasonable conversation with somebody about the reasons why they would not want to be exercising their powers and based on that reasonable discussion there would then be an opportunity to hopefully approve and provide that required approval to continue and occasionally there will be an impasse and that would, you know, potentially require the issue resolution process is either Fire and Rescue NSW or the default out of the legislation to be applied." [Transcript 18 May 2023, lines 9 - 27, page 66.] "Q. Sure, but in terms of considering whether or not to approve, would you - you would agree, wouldn't you, that a prime consideration more than whether it's an economic or effective use of government resources or money, it should be whether or not there is an actual - a valid or live safety issue? Wouldn't that be a relevant consideration for a decision maker in this situation? A. As I sort of said, I believe that the two things are closely intertwined." [Transcript 18 May 2023, lines 45-50, page 67.] "Q. Where does the PCBU get the power to decide which HSR deals with a matter that's been raised? Surely that's a matter for the HSR, isn't it? A. No, I don't necessarily agree that it is a matter for a HSR. I think that - or for that specific HSR. I think what we're looking at is is that work group has decided, as an example the Metro North 3 work group has decided that there'll be five people who will represent them on work health and safety matters. They haven't specified that at a particular station a particular HSR will or will not represent them on a particular matter. So, really, the intention of the pool and my understanding of why such a pool was created by the SafeWork guidance in 2013 was to, as far as reasonably possible, to have that there was potentially - or give the greatest potential possible that there would be a HSR on duty at a particular time, and obviously they could have a timely response. Certainly, the verbal conversations that I've had with various SafeWork inspectors over my time in the role has been that they feel that it is reasonable for the people who are on duty to be assisting with that particular matter, rather than a HSR who's off duty and who should be winding down and having that appropriate time away from work, feeling that at any moment their phone could ring and they might immediately need to respond to a different location to provide that service. So, I guess, you know, ultimately I think that there is a balancing point that needs to be made. Ultimately I say it is what is reasonable to occur in a particular instance. I think if a HSR had a specialisation which would be - or say had had previous experience on the exact same matter, you can understand that it would be advantageous to have continuity but I don't believe in this particular instance that was the case. Q. All right but an HSR, where do you say the PCBU gets the power to decide that an HSR can't exercise their functions and direct that another HSR does exercise functions? A. Well, I mean I think obviously the WHS Act doesn't explicitly say that, as far as I'm aware. It doesn't require or doesn't say which HSR for a particular workplace is required to do or not to do anything." [Transcript 18 May 2023, lines 30, page 69 to line 10, page 70.]

What is at issue in the proceeding

In order to understand the submission of the parties, it is helpful to outline what the parties say is in issue.
The applicant set this out as follows in his Outline of Submissions: "Central issue in the proceeding 6. In this matter, the Applicant sought, by the giving of notice and in good faith, to exercise statutory functions conferred upon him by the WHS Act. Without engagement or negotiation, the Second Respondent sought to and did obstruct and frustrate that exercise of statutory functions. From the evidence®, it appears the Second Respondent acted in reliance upon managerial prerogative. 7. While not explicitly articulated by the Second Respondent, it also appears to rely upon the relevant industrial award made by this Commission, the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award which covers employees including the Applicant, as follows: 6.6 Authorised Duties 6.6.1 Where an employee is required to attend meetings or to perform other authorised duties, payment shall be made at the appropriate rate of pay for the employee's classification pursuant to subclause 6.5.1.5. Such authorised duties include, but are not limited to, those duties that are set out in Table 4 - Authorised Duties, of Part B, Monetary Rates. 6.6.2 Employees seeking to attend meetings and/or perform duties in accordance with subclause 6.6.1 which are not referred to in the said Table 4 must receive authorisation from the relevant Captain, Inspector or higher ranking officer prior to the performance of such duties. 8. As noted by the First Respondent, presumably in reliance upon submissions made by the Second Respondent, the relevant table 4 does not provide for any HSR duties. Under the award, to exercise any duties other than those in table 4 an employee must receive the approval of the relevant Captain, Inspector or higher ranking officer (which in this case was not given). It is assumed the contention of the Second Respondent is that this includes the performance of duties as a HSR. This gives rise to a significant question of statutory construction relating to the interaction of the IR Act and instruments made under it on the one hand and the WHS Act on the other. 9. In this matter, the Applicant was not seeking to exercise functions as an employee or Retained Firefighter. He was seeking to and did discharge the functions as a HSR, which are conferred upon him by the WHS Act. HSR functions are not regulated by the award or the IR Act. It is the Applicant's case that an award made under the IR Act cannot constrain or regulate the exercise of powers expressly conferred upon a HSR by the WHS Act. Further, that the award does not in its terms purport to and does not regulate or deal with HSRs or work health and safety issues, even assuming that jurisdiction existed for this Commission to make awards that do so." [Emphasis in original. Footnotes omitted.]
The second respondent succinctly submitted that the issue was: What are the implications of this case? 12. The implications of this case are substantial. Should the PIN be set aside, Fire & Rescue will be required to pay any HSR who wishes to inspect Fire and Rescue premises on their own time. This would occur whether or not Fire & Rescue consented to or even knew about the inspection. There would be no reason why every other employer (except those subject to the Commonwealth WHS Act) would not be subject to the same obligation. 13. As counsel for the applicant frankly and properly conceded: COMMISSIONER: ...the outcome of your submission is that effectively a casual employee can then set their own work hours to go and conduct the inspections. SEARLE: But I understand the thrust of your argument and at a worst case scenario that might literally be the case." [Emphasis in original. Footnotes omitted.]
The counter position pressed for by the respondent, it should be observed, would have the outcome that employers were, at least in certain situations, able to direct an elected HSR not to perform activities authorised under the WHS Act. Further, it would enable an employer to require a different HSR to perform those activities if the employer so elected.

Submissions of the applicant

The applicant submitted that the correct approach to determining the meaning of legislation included consideration of the context and purpose of the relevant provisions of that legislation. He submitted that subject to the construction being available based on the words of the particular provision, an interpretation which would better give effect to the purposes and objectives of the legislation overall should be preferred over one which would undermine them.
In his written outline he submitted that any conflict between the WHS Act and the Industrial Relations Act 1996 (IR Act) should be addressed in the following fashion: "12. In examining the nature, purpose and objects of each of the IR Act and the WHS Act, their histories as well as their provisions, it can be seen that they are each directed to different matters. The first statute concerns wages and other conditions of employment broadly, and the second provides a comprehensive regime for workplace safety and, specifically, for HSRs. An examination of the applicable award, the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff Award, reveals that it does not purport to deal with HSRs or workplace safety. Therefore, the award simply has no application to the present matter and cannot and does not in any way enable the Second Respondent to obstruct, interfere with or in any way influence the exercise of the statutory duties conferred on a HSR under the WHS Act. In this matter, the Applicant was acting not as an employee or Retained Firefighter. The award and its clause 6.6 did not apply to that fact situation and did not confer upon the Second Respondent any capacity to direct the Applicant on any matter touching upon his exercise of statutory HSR functions. 13. Further, as the WHS Act deals directly and in a detailed way with HSRs and their powers and duties and the IR Act would, at most, deal with WHS only in a general way as a condition affecting impacting the performance of work the more specific legislative provision(s) apply to the exclusion of the more general. … … 17. In Transport Workers' Union of Australia, NSW Branch v SafeWork NSW [2022] NSWIRComm 1050, the Full Bench stated: 21. The main object of the WHS Act is to provide a 'balanced and nationally consistent framework to secure the health and safety of workers and workplaces': s3. Section 3 directs that this object is to be achieved by the matters set out in 3(1), including, relevantly,: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety, and … (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and 22. The WHS Act is beneficial legislation designed to ensure the health and safety of workers and other persons who perform work or are present and businesses or undertakings, … 32 Subdivision 4 of Division 3 of Pt 5 of the WHS Act provides for the election of HSR's, while subdivision 5 sets out the powers of the HSRs. 33 Subsection 69(1) provides that a HSR may exercise functions and perform functions only in relation to matters that affect or may affect workers in their work group. A HSR has limited capacity to exercise powers in relation to workers outside of their work group in circumstances of serious risks to health or safety emanating from an immediate or imminent exposure to a hazard the affects, or may affect, a member of the work group: subs 69(2). 18. From the legislation and these authorities, it can be seen that real significance and power is conferred upon HSRs under the legislation as an integral institution directed to securing the outcome of safe workplaces and reducing or eliminating risks to health and safety. Section 68 of the WHS Act sets out the powers and functions of HSRs and, it is submitted, unless expressly modified or derogated from in the WHS Act or some other express legislative provision, constitutes a code in relation to those matters. By the same token s69, which circumscribes the limits to those functions and powers, also constitutes the only limitations on HSR functions set down by the legislature, unless some other express provision can be identified." [Emphasis in original.]
In his outline of submissions in reply he more succinctly submitted that: "19. … the terms of an award or contract of employment cannot avoid the obligation to pay wages imposed by s70(3) of the WHS Act …"
As to whether he had properly invoked his duties and power pursuant to s 68, and as to the circumstances in which the second respondent had directed the applicant not to conduct inspections, the applicant submitted that: "29. The Applicant relied and continues to rely upon ss68(1)(b), 69(1)(d) and 68(2)(a)(i) as the sources of his power and authority to give notice to the Second Respondent of his intention to conduct certain inspections within his work group. Contrary to the position taken by the Second Respondent in the person of Zone Commander Superintendent Garry Tye and the First Respondent in the person of Inspector Whatman the Applicant was not required to consult the Second Respondent in relation to whether or not to exercise his statutory duty as a HSR, or as to the timing and manner of that exercise. Section 68(2)(a)i) of the WHS Act only requires the giving of 'reasonable notice'. The Applicant provided six days' notice for the first inspection and more for the subsequent inspections and proposed inspections. Nothing advanced by the Second Respondent provides any basis for concluding that the notice given by the Applicant was anything other than reasonable in the circumstances. See Annexure 'E' to the Statement of Giacomo Arnott: 'I believe I have given more than reasonable notice and if that is challenged I am sure Ms Donohoe will be able to chat with SafeWork for a solution prior to the first visit...' This was not contradicted by the Second Respondent. Further, in relation to those inspections conducted, there is no suggestion of any issue or difficulty arising from the extent of notification given by the Applicant. … 31. In Annexures 'D' and 'F' to the Statement of Giacomo Arnott, the Second Respondent clearly seeks to obstruct the Applicant in relation to the proposed inspections notified to Zone Commander Garry Tye. This is done by querying the need for the inspections; by asserting the Applicant does not have the delegation or approval to incur any costs or expense, including for his time, and indicating that any such approval will not be given; by asserting that the HSR function could be carried out by another HSR, and purporting to allocate the duties to that person; by relying upon considerations of administrative convenience and cost efficiency and, ultimately, by purporting to direct the Applicant to not conduct further proposed inspections. This is a direct contravention of s70(2) of the WHS Act. 32. By email dated 10 November 2022, the Second Respondent through Zone Commander Superintendent Garry Tye rejected the claim submitted by the Applicant for the payment of his wages for the time spent conducting the workplace inspections and indicated in explicit terms that he will not be approving any further claims made. The Applicant submits this is a contravention of s70(1)(f) and s70(3) of the WHS Act. Given the conduct of the Second Respondent, the Applicant formed the view the Second Respondent had breached the WHS Act and was likely to continue to do so. As a result, he intended to issue a Provisional Improvement Notice pursuant to s90 of the WHS Act. [Emphasis in original. Footnotes omitted.]
The applicant submitted that there were two conditions precedent for an HSR to issue a provisional improvement notice, setting out in his written outline that: "34. There are two conditions precedent for a HSR to issue a PIN. The first is that the HSR forms a reasonable belief as to the requisite facts. The applicable authorities make clear this is to be determined objectively and requires the existence of facts sufficient to induce that state of mind in a reasonable person: see George v Rockett (1990) 170 CLR 104 at 112; Essential Energy v WorkCover Authority [2012] NSWIRComm 83 at [24] per Backman J; Growthbuild at [39]-[61] per Chief Commissioner Kite, and also at [38]: '. ... the question in this case is not whether the Inspector held a belief but whether such a belief was reasonable in the circumstances.' 35. It is submitted that, on the evidence, the Applicant reasonably believed (within the meaning of s90) that the PCBU was contravening or had contravened the legislation - by obstructing and preventing his proposed workplace inspections and failing to provide him with assistance with those inspections, including by failing to approve his claim for wages for the time spent conducting the inspections which did occur - in circumstances where (given the attitude of the Second Respondent in the person of Superintendent Tye) it was likely those contraventions would continue or be repeated. Such a conclusion is fortified by the evidence of the Applicant of what he discovered from the workplace inspections he was able to carry out, which were matters in his view constituting further breaches of the WHS Act and/or Regulations. 36. The second requirement is for the HSR to consult the person to whom a PIN is to be issued beforehand. There is no guidance in the legislation or regulations as to any particular form that consultation must take, or its extent. It is submitted that, given the nature and purpose of the legislation, a non-technical approach should be taken to the construction of this provision. 37. While the First Respondent determined that the Applicant had not discharged this requirement of the legislation, the evidence indicates that he did so. The Applicant sent an email to the Second Respondent on 18 November 2022, indicating an intention to consult it about the issuing of a PIN and the reasons for this. The Applicant indicated a timeframe of three days' hence, 21 November. The Applicant received no telephone call or email seeking to engage him in any discussion of the matter. The only response was an email from Ms Donohoe on 21 November referring the matter to the First Respondent. There was no further contact on the matter from the Second Respondent. After waiting for an additional three days beyond what had been notified, and having determined the response of the Second Respondent at Annexure 'I' was not adequate to resolve his concerns, the Applicant issued the PIN. The Applicant clearly discharged the requirement on him to consult the Second Respondent before issuing the PIN. 38. The case of the Applicant, as disclosed in the PIN issued on 24 November 2022, and in his Statement, is that the Second Respondent has by its actions failed to comply with 570 of the WHS Act, in two material respects. Firstly, by obstructing an elected HSR in the exercise of his lawful statutory duty in relation to the workplace inspections given notice of, contrary to 570(2) of the WHS Act. Secondly, by failing to provide relevant assistance and support to the HSR in the exercise of his same duties, as required of the Second Respondent by s70(1)(f) and s70(3) of the WHS Act, by the payment of his wages for the time when the statutory duties of the HSR were exercised. 40. The pattern of conduct of the Second Respondent in relation to the workplace inspections is clearly contrary to s70(2). Through emails which are Annexures 'D', 'F' and 'G' to the Statement of Giacomo Arnott, Zone Commander Superintendent Garry Tye raises a series of objections and impediments by indicating to the Applicant that has no approval or delegation to incur any costs, including for his time, indicating that such approval is not given; that there is another available HSR, whom he purportedly allocates the inspections to; and, after rejecting claims made by the Applicant for payment for the inspections he did carry out, ultimately directs that the Applicant conducts no further inspections, in these terms in 'D': 'To be clear you are not approved or required to undertake any further station inspections as Todd is now available and I will not be approving any claims you make in relation to station inspections." [Emphasis in original. Footnotes omitted.]
The applicant's submission as to payment of wages for the period during which he was conducting inspections was that all work done exercising the powers and duties of an HSR was required to be paid, whether or not an employee would ordinarily have been working at the time. This, it submitted, was the only proper way in which s 70(3) could be read, consistent with the objects of the WHS Act and maintenance of the integrity of the HSR regime. In detail he submitted: "43. It is submitted that s70(3) in its plain terms, and more particularly in the context of the legislative scheme as a whole, requires that HSRs discharging their roles under the legislation are to be paid for their time doing so. This is consistent with the legislative scheme, which supports HSRs as a key component in promoting and maintaining safe workplaces. A construction that provided for HSRs to be paid only when they discharge their role when otherwise working or rostered on to work would deprive the scheme of HSRs of its efficacy, by severely limiting the ability of HSRs who do not have set work times to fulfil this statutory role. It would also create a financial impediment to the exercise of these statutory duties, by requiring them to carry out these important public duties in their own time and at their own expense if they are not able to attend to them during the time they are otherwise at work. 44. For HSRs who are employed on a regular or set roster and responsible only for the location at which they work, fulfilling their HSR function when rostered and performing the work for which they are employed is straightforward. For HSRs who are casually employed (or like the Applicant are a Retained Firefighter) without set work days or hours, and responsible for multiple workplaces located over a significant distance, discharging duties as a HSR only when performing rostered work would be impracticable or would create a significant limitation on when and how the statutory duties could be exercised." [Emphasis in original.]
And in his outline of submissions reply he submitted: "20. … the requirement that HSR's be paid when exercising their statutory duties is entirely appropriate and vital to securing the legislative objects for which they were created, which requires a degree of independence. If they were restricted to only operating when directed or permitted by their employer, this crucial function would lose any autonomy and be rendered ineffective, contrary to the clear intention of the legislature. HSRs are not permitted to simply operate as they wish, they are restricted to the scope set out by s68 of the Act."

Submissions of the first respondent

Consistent with the logical flow of the original decision, and of the internal review, the first respondent submitted that the issues raised on external review were: "1. Whether Mr. Arnott had established that he was monitoring the measures taken by Fire and Rescue NSW in compliance with the WHS Act in relation to workers in the work group, in satisfaction of section 68(1)(b) of the WHS Act. 2. Whether Mr Arnott had established that he had given notice to Fire and Rescue NSW to inspect the workplace or part of it in compliance with section 68(2)(a)(i) and/or (ii) of the WHS Act. 3. Whether Mr. Arnott had demonstrated consultation with Fire and Rescue NSW prior to issuing the provision improvement notice on 24 November 2022, as required by section 90(3) of the WHS Act. 4. The proper statutory construction of section 70(3) of the WHS Act, and in particular, the words, 'must be with the pay that he or she [the health and safety representative] would otherwise be entitled to receive for performing his or her normal duties during that period...'" [Emphasis in original.]
Consistent with its submission as to its role in the external review, the first respondent did not offer the Commission any answers to those questions.

Submissions of the second respondent

The second respondent turned first to the terms of the PIN, submitting that even on the applicant's evidence the PIN could not be properly understood. The second respondent took the Commission through the evidence of the applicant submitting that at different times he had said his concern expressed in the PIN was that he had been denied payslips, then said it was timesheets, then said it was payments, and then at others that he was directed not to perform WHS duties as an HSR.
The respondent submitted that the PIN is serious document, and therefore needs to be clear as to the content set out in it. It was the content actually set out in the PIN that was the boundary of what could be understood by the recipient of the PIN, not matters which were in the mind of the author of the PIN but not clearly set out in that notice.
The second respondent's submission was that the PIN did not even set out a specific contravention of the WHS Act. Accordingly, it was submitted that the applicant was not entitled to issue a provisional improvement notice.
The second respondent then set out a series of six questions which it said should be answered in conducting the external review. It was the position of the second respondent that if the answer to any of those questions was against the applicant his application should be refused. The second respondent submitted that each of the questions should be answered in the negative.
The first question posed by the second respondent was whether the applicant reasonably believed that the second respondent was contravening a provision of the WHS Act thus entitling him to issue the PIN. In this respect the second respondent's written submissions were that: "26. The test is not whether Mr Arnott thought that the Act was being contravened. The test is whether a reasonable person would have so thought. A reasonable person would not think that the Act provided an obligation to provide payslips to an HSR (or any of the other formulations of the offence) in circumstances where: (i) The HSR had unilaterally decided to conduct inspections; (ii) The effect of the inspections was that the station to which he was attached fell below the minimal available staffing levels requiring relief duties (and the payment of extra wages) to be performed at that station; (iii) Fire and Rescue NSW had made arrangements for another available, capable and qualified Health and Safety Representative to conduct the inspections; (iv) The HSR was not otherwise at work and had no right to be provided payslips for the period. 27. Further, there is a requirement to make reasonable inquiries to establish or clarify the facts. The applicant gave evidence that he had not engaged a legal practitioner and did not make a formal request for assistance from SafeWork to clarify the facts as to what constituted a breach of the Act." [Emphasis in original.]
The second question posed was whether the applicant was exercising powers or performing functions under the WHS Act. The second respondent submitted that this should be answered by determining whether the applicant was "monitoring the measures taken by the PCBU", or "inquiring into anything that appears to be a risk to health and safety".
In answering the first sub-question the second respondent submitted that: "33. The requirement to monitor focuses not on the risks to safety but the measures taken by the PCBU. The word monitor has a number of meanings but the Macquarie Dictionary includes the following: 10. to check, observe, or record the operation of (a machine, etc.), without interfering with the operation. 11. to supervise; observe critically. 34. The question then is whether Mr Arnott was monitoring the risks to safety or the measures taken by the PCBU. On his own account he was performing station inspections He was not monitoring the measures taken by the PCBU." [Emphasis in original.]
As to the second sub-question the second respondent submitted that the applicant's evidence was that he was not enquiring into "apparent risks" but was enquiring into "potential risks": that is, he was performing a general compliance check.
Third question posed by the second respondent was whether the applicant had consulted prior to issuing the PIN. In summary it was the position of the respondent that "[t]he applicant has not consulted. He has not even sought to consult."
In more detail the second respondent's submission was that: "41. The applicant submits … that there is a requirement for the HSR to consult the person to whom a PIN is to be issued beforehand. That is correct but what does it mean to consult? 42. In the Consultation clause in modern awards case [2013] FWCFB 10165 at [28] - [32], the Full Bench surveyed the authorities as follows: In this context the word 'consult 'is used as a verb and is defined in the Oxford Dictionary in these terms: 'Consult with. To take counsel with; to seek advice from.' … The word 'consult 'means more than the mere exchange of information. As Young J said in Dixon v Roy: 'The word 'consult 'means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.' [citations omitted] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. … 43. The email purporting to set out a consultation process … was sent on 18 November 2022. The timeframe provided was far too short to allow for meaningful consultation. … 44. The applicant simply sets out his position and states that: If you are unable to resolve this matter by COB 21 November 2022, I will go ahead and issue both PINs. 45. That wording falls well within the first category referred to by the Full Bench being that: "this is what is going to be done". It is not asking for comment or question. There is no consequential requirement for the affording of a meaningful opportunity to that party to present those views. 46. Indeed, Mr Arnott gave evidence that: No, I don't believe I asked for an alternate view because I was pretty clear on what the legislation said and what their requirements were under it. P 42 L50 and … and most tellingly: Q. You were just telling them, "This is what I am going to do unless you capitulate"? A. That's right." [Emphasis in original.]
The fourth question posed by the second respondent was whether the applicant had served the PIN because he had served it by email on an employee of Fire and rescue rather than on the Commissioner of Fire and rescue.
The fifth question posed by the second respondent was whether there was a valid PIN, because the applicant had not identified the correct PCBU.
Finally, the second respondent submitted that Commission should ask whether the applicant was paid what he would otherwise be entitled to receive for performing his normal duties at the time of the inspections.
The second respondent submitted: "58. [The applicant's real case leaves] open the extraordinary and absurd proposition that a person could attend to inspect the workplace for every working day of their life and during their holidays and be paid. Even more absurd would be the outcome whereby for the time that Mr Arnott was inspecting the workplace, the station to which he is attached fell below the minimal available staffing levels requiring relief duties (extra wages paid) to be performed at that station. The absurdity looms even larger when Fire and Rescue NSW had made arrangements for another available, capable, and qualified Health and Safety Representative to conduct the inspections. 59. Parliament is generally assumed to not pass laws that are absurd: Cooper Brookes [1981] HCA 26 11 ATR 949 at 966. 60. That proposition would also be contrary to the Explanatory Note which makes clear that the requirement to pay wages is constrained. It states that: Explanatory note The person is also required to allow the representatives to attend training in relation to work health and safety, provide financial assistance in certain circumstances and to maintain a list of health and safety representatives for each work group. [writer's underlining] 61. In any event, the applicant's submission does not appear to grapple with the question that the section requires to be answered. The question that is required to be answered is what would the applicant be otherwise entitled to receive for performing his normal duties under the Act. That in turn requires the answering of two questions. The first is: what would he be entitled to receive for performing his normal duties? The second is what is meant by otherwise. 62. As to the first question; the applicant appears to provide no evidentiary basis as to what wages he would have been paid had he been performing his normal duties during that period. 63. Payment for duties needs to be examined in terms of the legal obligation to be paid. That arises under the Award. The duties to be performed are those that are directed and as may be required by the Department: Clause 32. Fire & Rescue did not direct or require the program of inspections. 64. Clause 6.6.1 of the Retained Firefighters Award sets out what duties are authorised. … … 65. HSR duties are not one of those duties. As to the second question, the insertion of the word otherwise is significant. It means under other circumstances. That is a limitation upon the meaning of the payment. It means on its face what he would have been paid had he not been performing his HSR duties and was otherwise performing his normal duties. 66. The purpose of the section is to ensure that HSRS are paid for performing HSR functions even though they might not be entitled to be paid for that work under their contract of employment or industrial instrument. Implicit in that formulation is the notion that they would be working their normal duties if they were not performing their HSR duties. If MR Arnott would not have been performing his normal duties if he had not been performing his HSR duties. He was not entitled to any payment. … 69. The applicant has not fulfilled the requirements to perform duties under the Act. The applicant has not fulfilled the requirements to consult. Even if the applicant had done so, he would only be entitled to be paid the period that he would otherwise have been working. He was not otherwise working. He is not entitled to any payment." [Emphasis in original.]

Consideration

The four questions suggested by the first respondent as those which should be addressed by the Commission, are accepted as an efficient process to address issues raised on external review. These questions overlap with the second, third and sixth questions which the second respondent submits should be addressed by the Commission.
The second respondent has raised further issues, and these go to matters which are relevant to issuing of a provisional improvement notice, so those further issues should also be addressed. These are the first, fourth and fifth question is raised by the second respondent (see above at [101], [112] and [113]).
The first respondent's fourth question is the most fundamental issue in dispute between the parties. Whether s 70(3) entitles an elected HSR to be paid specifically for performing the roles and duties of an HSR at times when they would otherwise not be rostered to work.
Related to this, but a separate question, is whether an employer is able to direct one of their employees, elected as an HSR, not to undertake some of the roles and duties of an HSR generally, or perhaps in particular circumstances.
The second respondent advances a range of reasons in support of its case, the most important of which is that otherwise an employee will be able to set their own hours up to and including any number of hours they see fit.
There is without question force to the second respondent's submissions that, certainly at the margins, the outcome pressed for by the applicant would result in an absurd interpretation of the WHS Act.
It would indeed be unusual if the parliament had intended that a person elected as an HSR could, without any limit, set the hours they work by invoking their roles and duties under the WHS Act.
In the Commission's view there are a number of problems nevertheless with the case pressed by the second respondent.
Most fundamental is that the outcome pressed for by the second respondent will, in practical terms, and in particular in the circumstances of this external review, have the effect of making the capacity of an elected HSR to perform the roles and duties assigned to them by the WHS Act subject to the discretion of their employer.
Had this been the intention of the Parliament it must be expected that this would have been set out expressly in the WHS Act.
To some extent, another answer to the endpoint of the second respondent's submissions are the powers invested in on an HSR being limited to circumstances specified by the WHS Act as authorising inspections. An HSR would be justified in spending unlimited time conducting inspections, if there are unlimited apparent breaches of the WHS Act authorising such inspections.
The Commission is not persuaded that an award of the Commission, managerial prerogative, or any other matter arising under an obligation or power established pursuant to the IR Act could, even if expressly set out, override the powers and duties vested in an HSR under the WHS Act. Such an outcome would be contrary to the purpose of the powers invested in an HSR pursuant to the WHS Act as standalone powers, independent of their employer.
The Commission concludes that nothing in the WHS Act, or any other law or instrument raised in these proceedings, would empower an employer to direct an HSR not to perform their duties including where the employer arranged for another properly elected HSR to do those duties.
As to the question of what if anything an HSR should be paid to perform duties properly authorised under the WHS Act, the Commission concludes that second respondent's submissions, while detailed and apparently internally logical, are apt to over complicate the questions which should be asked.
Section 70(3) of the WHS Act is best understood as a requirement that an employee be paid for time performing their HSR duties at the rate they would have been paid at the same time had they been performing their normal duties.
Clearly, if an employee conducts their HSR duties during their normal working hours, that section prevents an employer from reducing their pay or refusing to pay them for that time.
It is equally capable of covering circumstances were an employee, perhaps in an emergency, extends their normal working hours in order to perform their HSR duties. There is therefore no reason in principle why the section does not cover an employee who works extra hours, completely independently from their normal times.
What the employee would have been paid, in the circumstances of this external review, is straightforwardly whatever the applicable award says should be paid at that time for the number of hours worked by the applicant, as if he was performing his normal duties.
The second respondent's fourth question, whether the PIN was validly served, because it was emailed to Ms Alison Donohoe, has a relatively straightforward answer.
Firstly, it should be observed that Ms Donohoe's signature block on emails to Mr Whatman, as contained in Mr Whatman's file for the original decision, sets out that her title is Director Work Health and Safety, Health and Safety Branch at Fire and Rescue NSW.
It was the applicant's evidence that he regarded Donohoe as the agent for Commissioner Paul Baxter. It is readily apparent that as an employee of the second respondent she is capable of meeting this description.
Relevantly, it is apparent that Superintendent Tye and others within the second respondent received the PIN and took action in response.
Other than the bare assertion that the PIN had not been validly served, little was made of this by the second respondent. Neither the original decision nor the internal review featured this as an issue raised by the second respondent.
Should the Commission determined to restore the PIN, or some amended version of it, which is now the question to be determined, the issue of valid service would not arise.
The fifth question raised by the second respondent, the question of whether the PIN had been addressed to the proper PCBU appears to the Commission to fall into a similar category to the prior question.
The second respondent submitted that Commissioner Baxter, to whom the PIN was addressed, was not the correct PCBU. The second respondent's submissions did not set out who should have been identified as the PCBU.
Should the Commission determine to restore the PIN, or some amended version of it, this is a matter which the Commission could ensure was correct in any order made to that effect.
The first question raised by the second respondent, whether the applicant had a reasonable belief that the second respondent was contravening a provision of the WHS Act and so entitling him to issue the PIN, is relatively straightforward as well.
Firstly, it should be observed that in reassigning, or purporting to reassign, the inspections the second respondent has implicitly accepted that the inspections were proper exercise of the roles and rights of an HSR.
That the applicant had "unilaterally decided to conduct inspections", of itself demonstrates no unreasonableness. This is the structure contemplated by the WHS Act.
The same can be said of the applicant's rostered station falling below minimum available staffing levels as this it does not appear as a consideration in the WHS Act. It is, in any event, far from clear that the station in question found itself in such a situation, much less that it was because of the inspections conducted by the applicant. The applicant denied this was the case, and the second respondent led no evidence to the contrary.
Given what is set out above, the fact that the second respondent arranged for another qualified health and safety representative to conduct inspections is also irrelevant.
The question of whether the applicant was otherwise at work is of course of a matter which has been addressed above.
It is not obvious that the WHS Act requires an HSR generally to consult with the regulator or obtain legal advice before issuing a provisional improvement notice. In the circumstances of the applicant and the PIN, there is no reason why the absence of these counts against the applicant having a reasonable basis to believe the second respondent was in breach of s 70(3) of the WHS Act.
The applicant presented to the Commission as someone capable of understanding the general nature of WHS issues. Relevantly, it appears the applicant has the educational qualifications necessary for admission as an Australian lawyer.
The first question posed by the first respondent, overlapping largely with the second question posed by the second respondent, is whether the applicant has established that he was monitoring measures taken by the second respondent in compliance with the WHS Act.
The Commission has difficulty in accepting the second respondent's submissions because they require the Commission to take a narrow view of the wording of s 68 of the WHS Act. Given the nature of the WHS Act, and in particular that health and safety representatives are intended as one of a range of measures designed to encourage compliance, detect non-compliance and intervene in circumstances where breaches are observed, and that health and safety representatives will in the main be ordinary members of the workplace, such a reading of s 68 of the WHS Act would be inappropriate.
The Commission is satisfied that the notice given by the applicant to the second respondent concerning his intention to conduct inspections at the 13 locations constituted monitoring of measures taken by the second respondent in compliance with the WHS Act.
Given the Commission's findings that there were, at the least, several genuine WHS issues identified during the inspections, that the applicant was aware of the general nature of at least a majority of them prior to the inspections, it is abundantly clear that what the applicant was doing in the inspections would clearly fall within an enquiry into anything that appeared to be a risk to the health and safety of workers arising from the conduct of the second respondent's undertaking.
The second question posed by the first respondent, as to whether the applicant had given the second respondent notice that he intended to conduct inspections can have only one answer. It is abundantly clear that the applicant gave such a notice. This was clear from the evidence of the applicant, and from the responses to that notice of Superintendent Tye.
The third question posed by the first respondent, mirroring the third question posed by the second respondent, being whether the applicant properly consulted before issuing the PIN, is a more difficult question to answer.
It is clear that the applicant's email, including its content, tone and deadline do not constitute model consultation. The second respondent's description of the applicant's conduct as more of an ultimatum than a consultation is a fair one.
The applicant's position, that he sent the draft PIN, and invited a discussion, setting a deadline and ultimately waiting for twice his original timeframe, has some substance. There is scope to believe he was willing to discuss the draft PIN, had the second respondent contacted him.
His evidence that he considered the second respondent's referral of the matter to the first respondent as an indication that the second respondent would not engage with him as to the draft provisional improvement notice is rational.
That said, the applicant did not make any attempt to follow-up his email by calling the recipient of his email or any other person at the second respondent. It was clear he regarded consultation as something he could set in train once, with have no obligation to follow-up unless and until the second respondent contacted him.
On balance, it is difficult to conclude that the applicant's conduct sufficiently constituted consultation as the term should be properly understood.
The second respondent's submission was that this answer should be a sufficient basis for the applicant to fail. The Commission does not agree with this conclusion. This is because the Commission is now determining, on the merits of all of the issues before the Commission, whether on external review the decision of Ms Cocks should be upheld, quashed or varied.
The totality of the evidence received by the Commission demonstrates that even had the applicant attempted further contact with the second respondent, actively sought their feedback, and listened to anything which the second respondent would have wished to put to the applicant, the parties would have ended up disagreeing about the PIN.
Because the Commission stands in the shoes of Ms Cocks, the Commission concludes that, despite the inadequacies of the applicant's own efforts at consultation, this would not be a basis on which the Commission would refuse to revoke or vary the decision on external review.
There are a small range of other matters which the Commission considers are relevant to determining whether to revoke or vary the decision at internal review.
The first of these is that s 70(3) of the WHS Act does not have a penalty attached to it for breaches of that provision. Indeed, there is no obvious mechanism in the WHS Act for any action to be taken against an employer who does not comply with that provision.
Despite any breach of this provision being apparently only a risk to work health and safety indirectly, because it reduces the prospects of an HSR properly conducting their duties, on the face of the legislation it is a provision to which a provisional improvement notice may apply. The Commission concludes that this is a factor which would weigh in favour of revoking or varying the decision at internal review.
Secondly, given everything set out above, and in particular that the Commission has concluded that the applicant was properly attempting to exercise his roles and duties as an HSR, and that in such circumstances the second respondent had an obligation to pay the applicant for time spent conducting inspections, in the circumstances of this external review, those factors clearly weigh in favour of revoking or varying the decision at internal review.
More broadly this is a vexed question. There is apparently no other mechanism for an employer, when faced with a similar situation, and where the employer genuinely believes that an HSR is exceeding their legal authority, than to simply refuse to accede to the request of the HSR.
While the Commission has concluded that this is not a case where the HSR exceeded their authority, it is not difficult, as the second respondent submits, to conceive of circumstances where an HSR will abuse their rights under the WHS Act such that substantial time is spent outside normal working hours, and considerable payment obligations are apparently incurred.
Some of this is answered through the applicant's submissions that an HSR may only exercise the rights in question on certain preconditions. But given the Commission's conclusions above as to the generous and beneficial ways in which the WHS Act should properly be interpreted it is again not difficult to conceive that highly motivated persons may readily exploit their rights and privileges. There does not appear to be a mechanism in the WHS Act for legal redress at the inspections stage, as opposed to merits review at the notice issuance stage.

Outcome

In totality the Commission has concluded that it is appropriate to revoke the decision on internal review and to vary the terms of the PIN such that it would require the second respondent to pay the applicant for the time spent conducting inspections already completed and to allow him to complete the program of inspections as notified to the second respondent, for which time the applicant should be paid.
The Commission is not persuaded that a broader obligation should be imposed on the second respondent. This is because the circumstances in which an HSR exercises, or purports to exercise, their rights and duties pursuant to the WHS Act must be assessed in light of the facts of each particular exercise of those rights and duties. There is not therefore a general obligation on the second respondent to pay an HSR on every occasion on which that HSR asserts they are exercising their rights and duties pursuant to the WHS Act.
The Commission does not consider the wording of a varied notice to the second respondent is complex, but the second respondent specifically submitted that it had should have an opportunity to consider the terms of such an obligation should the Commission propose to impose one.
The Commission has determined to direct the parties to agree the terms of a varied notice identifying the correct PCBU and other formalities, time for compliance, and which will oblige the second respondent to pay the applicant wages required in accordance with the reasons above for the inspections already conducted and the remaining inspection set out in the applicant's original notification.
Should the parties not agree such terms within 28 days, the applicant and second respondent should file their respective terms for such a varied notice and advise the Registry whether they require the matter to be listed for hearing or whether it should be determined on the papers.

Orders

The applicant and second respondent are directed to consult on the terms of minutes of orders giving effect to this Decision. C Muir 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: 28 June 2024

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Cases Cited (8)