HEADNOTE
[This headnote is not to be read as part of the judgment]
On 29 September 2021, Aurizon Operations Limited (Aurizon) applied to The Office of the National Rail Safety Regulator (the Regulator) to vary its railway operations accreditation to add "crew cars" for a proposed new freight service to transport mineral sands from the east coast of Australia to the west coast. The purpose of the crew cars is to enable its crew to sleep, cook and take breaks whilst remaining on the train for the segment of the route between Broken Hill and Port Augusta in South Australia where there is a paucity of available accommodation.
On 11 February 2022, Peter Doggett, the Regulator's delegate (the Delegate), granted the variation (the Variation), as he was, relevantly, satisfied that Aurizon had fulfilled its obligation under s 99(3)(a) of the Rail Safety National Law (NSW) (the National Law), to, so far as is reasonably practicable, consult with:
"(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator's railway premises or with the operator's rolling stock; and
…
(iii) any union representing any of the persons referred to in subparagraph (i)".
Aurizon consulted with prospective train drivers who were to operate the new route and who would be the ones using the crew cars. It did not consult with persons who worked either at Aurizon's railway premises or with their rolling stock.
On 10 May 2022, the Australian Rail Tram and Bus Industry Union (the Union) challenged the Variation on the basis of alleged non-compliance with s 99(3)(a) of the National Law. Walton J (the primary judge) set aside the Variation on a ground for which none of the parties had contended: that s 99(3)(a)(i) takes effect as a deeming provision and deems all persons who carry out railway operations, or work on, or at, the operator's railway premises, or with the operator's rolling stock as likely to be affected by the Variation.
On appeal, Aurizon argued that the primary judge's construction of s 99(3)(a)(i) was incorrect. The Regulator cross-appealed the primary judge's decision to the same effect.
The Union filed a Notice of Contention, claiming that the order setting aside the Variation ought stand as the Variation was invalid on the following bases (not found by the primary judge):
(1) s 99(3)(a)(iii) of the National Law required Aurizon to consult with the Union as it was entitled to represent the crew, although none of the proposed crew was a member of the Union (ground 1(a) of the Notice of Contention); and
(2) the Delegate failed to consider whether there were persons who worked at Aurizon's railway premises or with its rolling stock who were also likely to be affected by the change to Aurizon's safety management system (ground 1(b) of the Notice of Contention).
The Court (Adamson JA, Mitchelmore JA and Griffiths AJA agreeing) upheld Aurizon's appeal and the Regulator's cross-appeal for the following reasons:
Ground 1 of appeal - construction of s 99(3)(a)(i)
(1) Section 99(3)(a)(i) of the National Law did not operate as a deeming provision. Aurizon was required to consult only those persons who belonged to any one or more of the three categories in the section and whom Mr Doggett was satisfied were likely to be affected by the Variation: [64] (Adamson JA), [1] (Mitchelmore JA), [87] (Griffiths AJA).
Ground 1(a) of the Notice of Contention - construction of s 99(3)(a)(iii)
(2) Section 99(3)(a)(iii) should be given its plain meaning. A union cannot be said to be "representing" persons who are not its members: [70] (Adamson JA), [1] (Mitchelmore JA), [87] (Griffiths AJA).
Ground 1(b) of the Notice of Contention - consideration under s 99(3)(a)(i):
(3) The Union bore the onus of persuading the Court that the Delegate, in finding that the potential crew members were persons likely to be affected by the Variation, failed to consider whether other persons were also likely to be affected. The Union failed to tender all the documents referred to by the Delegate in his reasons. Thus the Union failed to discharge its onus of proof: [77]-[78] (Adamson JA), [1] (Mitchelmore JA), [87] (Griffiths AJA).