Benjamin Kreger v SafeWork NSW

Factual Background

1. Mr Kreger is an employee of Sydney International Container Terminal ("SICT"). He is an elected HSR in accordance with Division 3 of Part 5 of the WHS Act.
2. There is no question that for all relevant purposes Mr Kreger was an "eligible person" as referred to in s 229, and defined in s 223 of the WHS Act.
3. On 21 April 2018 Mr Kreger, in his capacity as HSR, issued several provisional improvement notices to SICT pursuant to section 102 of WHS Act, including one seeking "training records and log books" ('the PIN").
4. On 21 April 2018 SICT applied to SafeWork for a review of the PIN pursuant to section 100(1) of the WHS Act.
5. On 4 May 2018 the PIN was reviewed by Inspector John Whatman of SafeWork who made the decision to confirm the PIN (with changes).
6. On 8 May 2018 SICT lodged an application with SafeWork for an internal review of Inspector Whatman's decision to uphold the PIN.
7. On 12 June 2018 SafeWork conducted the internal review and made the decision to cancel the PIN on the basis that the PIN was contrary to section 90(5) of the WHS Act.
8. On 15 June 2018 Mr Kreger sent an email to SafeWork requesting information regarding the outcome of the internal review. In response, SafeWork provided a copy of the outcome letter to Mr Kreger, via email, on 15 June 2018.
9. On 29 June 2018 the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union ("MUA") filed with the Commission an application for external review of the decision to cancel the PIN, purportedly pursuant to s 229 of the WHS Act ("MUA Application"). Those proceedings were allocated matter number 2018/201268.
10. On 3 August 2018 the MUA Application was first listed before the Commission. On that date the Commission ordered pursuant to s 229(2)(c) of the WHS Act that SafeWork provide Mr Kreger with a statement of reasons for the decision to cancel the PIN ("Order").
11. On 14 August 2018 SafeWork sent a letter to Mr Kreger, via email. A copy of that letter is attached to the Application and reads, in part, as follows: "We refer to the above matter and to the orders made by the Industrial Relations Commission of NSW (IRC) on 3 August 2018 directing SafeWork NSW to provide you with a copy of the Statement of Reasons in relation to the internal review decision made on 12 June 2018. We note that a copy of the Statement of Reasons/outcome letter sent to the original applicant was previously provided to you via email, as per your request, on 15 June 2018. However, in order to comply with the orders made by the IRC we provide you with another copy of this document. Accordingly, please find attached a copy of the Statement of Reasons/outcome letter provided to the original applicant dated 12 June 2018."
12. On 27 August 2018 Mr Kreger filed the Application with the Commission.
13. On 14 September 2018 the Commission found that the MUA Application was a nullity and proceedings 2018/201268 were dismissed: The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v SafeWork NSW [2018] NSWIRComm 1053 ("MUA Decision").

Grounds of objection

1. SafeWork's jurisdictional challenge to the Application rests on two grounds.
2. Its primary submission is that the Application is out of time. In support of this submission SafeWork argues as follows: 1. The word "first" in s 229(2)(b) of the WHS Act "has work to do". Once the internal review decision came to Mr Kreger's notice on 15 June 2018 the time limit in s 229(2)(b) was enlivened, which then operated to the exclusion of s 229(2)(c). 2. If s 229(2)(c) remained available to Mr Kreger, s 229(2)(b) would have no work to do as in any case an applicant could simply invoke s 229(2)(c) to the exclusion of s 229(2)(b). This construction invites the Commission to disregard s 229(2)(b) such that it would be superfluous, contrary to the canons of statutory construction. 3. The Application was not filed within the 14 day period mandated by s 229(2)(b). 4. The Commission has no power under the WHS Act or the Industrial Relations Act 1996 (NSW) ("IR Act") to extend time for Mr Kreger to make the Application. 5. It follows that the Application is out of time and ought to be dismissed.
3. The second ground on which SafeWork opposes the Application is that the Order "cannot be relied upon". This is said to be the case for two reasons. Firstly, Mr Kreger had already received a "statement of reasons" on 15 June 2018, such that the Order was otiose. Secondly, as proceedings 2018/201268 were found to be a nullity and dismissed, "[a]ny directions that were made within those proceedings fall away with those proceedings".

Consideration

1. Before addressing SafeWork's submissions, I should observe that the Order was one made by me. I also made the MUA Decision.
2. At the first listing of these proceedings on 19 October 2018 I had the following exchange with counsel (Tcpt, p 6 (10-24)): "COMMISSIONER: My next question is, it was my direction that [you are] challenging. What are the parties' views as to whether it should be me or somebody else on the [Commission] that hears the matter? BONCARDO: I don't think that could possibly give rise to any reasonable apprehensions, that you would bring anything other than [an] impartial mind to determining the matter. COMMISSIONER: Just want to call out the elephant in the room, Mr Boncardo. BONCARDO: Certainly, Commissioner. CARPENTER: No issue, Commissioner."
3. As the parties raised no concerns with me determining the jurisdictional issue, I have proceeded to do so.
4. I turn now to SafeWork's submissions.
5. Both parties referred me to authorities regarding the approach to statutory construction. It is unnecessary for me to set out the relevant principles. They have been well established by the High Court in, inter alia, Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No. IHOOAAQS v Cross (2012) 293 ALR 412 and in the cases to which I was referred by the parties. I have applied those principles in reaching my decision on the construction issue in this case.
6. During the hearing I had a lengthy exchange with Ms Carpenter seeking to clarify her submissions regarding the construction of s 229(2). It is not necessary to reproduce that here. Suffice it to say, I do not understand SafeWork to be contending that, as a general proposition, the simple fact that a relevant decision comes to an applicant's notice within the meaning of s 229(2)(a) or (b) means that the relevant time limit within those paragraphs is enlivened to the exclusion of s 229(2)(c).
7. For the avoidance of any doubt, however, I make the following observations.
8. If the construction outlined in [26] were adopted, one would have to question in what circumstances s 229(2)(c) could be invoked. As a matter of logic an eligible person will only make an application for a statement of reasons under that provision once they become aware of the relevant decision as referred to in s 229(2)(a) or (b) (noting also the extended definition given to "decision" in s 223(2) of the WHS Act). Otherwise, about what would they be seeking reasons? If an eligible employee's awareness of that decision precluded them from seeking an order from the Commission under s 229(2)(c), it is hard to envisage circumstances where the provision would be able to operate.
9. Such a construction would require the Commission to render s 229(2)(c) effectively otiose. That would be contrary to the principles of statutory construction referred to above.
10. In any event, that construction is not available from the language of the section. Sections 229(2)(a) and (b) are clearly, on their terms, alternatives, depending on the nature of the decision in question. Reading s 229(2) as a whole, and noting the use of the disjunctive "or" between s 229(2)(b) and (c), para (c) must be read as providing a third alternative, to either para (a) or (b).
11. It follows that SafeWork's submissions that the Commission cannot extend the time for an eligible person to make an application for an external review under s 229 of the WHS Act are not wholly correct. The Commission can do so in a practical sense if it requires the regulator to give the eligible person a statement of reasons under s 229(2)(c).
12. In any event, and as stated above, based on my exchanges with Ms Carpenter at the hearing I do not understand SafeWork to be pressing for a construction of s 229(2) as outlined at [26] above. Rather, the contention appears to be that in the circumstances of this case s 229(2)(c) is not available to Mr Kreger because on 15 June 2018 he received not only notice of the decision, but a statement of reasons.
13. During the hearing Ms Carpenter made these submissions: "But in these proceedings specifically you can't just jump straight to (c). You have to look at 229 in its entirety because that's the time limit period. Looking at 229(2) specifically, it doesn't fall into (a). (a) is not relevant. It falls into (b) because factually Mr Kreger received the statement of reasons. (c) not necessary because he already had the reasons. Putting to one side the question of being directed in proceedings that have now been a nullity, even regardless of that, but that's really a secondary point, the primary point is the use of the word by the legislature of "first" in s 229(b). One could rhetorically ask, "What is the purpose of the word 'first'?" The purpose has to be that it contemplates that maybe there are other times when it comes to an eligible person's notice, but it is when it first comes to the eligible person's notice that the Parliament has decided that is the trigger. That's when the fourteen day period is going to arise or in (a) the twenty-eight day period. Regardless of how many times the statement of reasons might come to their notice or be given to them, it's when it first comes. As I say, the peculiarity or the specificity of these proceedings is that the reasons were exactly the same. We can see that from the attachment to the schedule. So no work for s 229(2)(c) to do in these proceedings." (Tcpt, p 7 (41) - 8 (8)) And later: "Can I clarify when I say it's a cascading effect, my submission is that you look at each of the subsections and you say does it fit under (a)? No, it doesn't. Does it fit under (b)? Yes. You don't need to go on to (c) then because it fits under (b) factually in these proceedings. There may be a circumstance where an eligible person doesn't have the reasons and they would fall under 229(2)(c), no cavilling with that submission, but that is to completely disregard the facts of these proceedings and that's what probably makes this unique. In my researches I couldn't find an equivalent situation where this sort of thing has happened." (Tcpt, p 10 (21-29)).
14. SafeWork contends that it was the receipt by Mr Kreger of a statement of reasons on 15 June 2018, in addition to notice of the decision, which led to the result that in this case s 229(2)(b) was enlivened to the exclusion of s 229(2)(c).
15. However, there is nothing on the face of the section which supports that construction. Section 229(2)(b) makes no reference to a statement of reasons, and so when that document "first" came to the applicant's attention is not relevant for the purposes of enlivening the time period in that paragraph.
16. The receipt of a statement of reasons cannot, on the language of s 229(2), affect the construction of the legislation as set out at [26] to [30] above. It follows that the fact that an eligible person may already have received a statement of reasons from SafeWork does not preclude an application being made under s 229(2)(c). That fact would go rather to the question of whether the Commission ought to exercise its discretion to make an order under that provision.
17. It is common ground that at the time the Order was made the Commission was not informed by any party that Mr Kreger had received a statement of reasons on 15 June 2018. I am not suggesting in any way that the representatives who appeared on 3 August 2018 were aware of the fact, much less deliberately withheld it from the Commission.
18. However, the Commission makes orders and gives directions based on the evidence available to it at the time. The Order cannot be impugned or challenged on the basis of facts not in evidence before the Commission at the time it was made. SafeWork's submissions in this regard essentially ask the Commission to find, with the benefit of new evidence and hindsight, that the Order should not have been made.
19. It is a matter for conjecture as to whether the Order would have been made had the Commission been aware that a statement of reasons had already been provided to Mr Kreger, but such speculation does not assist SafeWork. Mr Kreger was entitled to invoke s 229(2)(c) and the Order was made.
20. This leads to the question of whether, with the Commission having exercised its discretion under s 229(2)(c), the Order can be relied on.
21. On the submission by SafeWork that the Order was otiose (Mr Kreger having received a statement of reasons on 15 June 2018), I repeat [37] and [38] above.
22. I also observe that the letter from SafeWork to Mr Kreger dated 14 August 2018 (see [15] above) refers to him being provided with "the Statement of Reasons/outcome letter provided to the original applicant dated 12 June 2018". While it is not stated in the letter, one might assume this document to have been provided to the original applicant (SICT) pursuant to s 227 of the WHS Act. That section is in these terms: 227 Decision on internal review As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing: (a) the decision on the internal review, and (b) the reasons for the decision.
23. SafeWork ran its case on the basis that "the reasons for the decision" as referred to in s 227 is synonymous with "a statement of reasons" as referred to in s 229(2)(c). While that might have been the case with Mr Kreger, I do not accept that it need always be the case. This is due not only to the difference in terminology used, but also to the fact that the obligation to provide reasons (however described) is directed in each provision to different parties. In the present case it is not necessary to explore that further.
24. Even if I were to accept that the Order was otiose, I do not accept that this provides a basis on which to find that Order cannot be relied upon.
25. This leaves the contention by SafeWork that as the Order was made in proceedings 2018/201268, which were found to be a nullity and dismissed, the Order falls away with those proceedings.
26. The Commission is not a superior court of record. It is created by statute and has no powers, jurisdictions or authorities other than those conferred on it by the legislation (to adopt the language which Sheller JA applied in connection with the District Court in KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516 at [22]). An order made by an inferior court without authority or jurisdiction is a nullity and may be disregarded: see Deveigne & Anor v Askar [2007] NSWCA 45 per McColl JA (Hodgson JA substantially agreeing) at [127] - [136].
27. The question is whether the Order was made without authority or jurisdiction. More particularly, does the fact that the MUA Application was subsequently found to be a nullity and dismissed necessarily result in the Order "falling away", as contended by SafeWork? I think not.
28. In the first place, while the Order was made in the context of the MUA Application it does not follow that it was made as part of the MUA Application.
29. The applicant (or purported applicant) to the MUA Application was the MUA. Mr Kreger was not a party to those proceedings. On 3 August 2018 Mr Reitano of counsel made a request pursuant to s 229(2)(c) of the WHS Act that SafeWork be required to provide Mr Kreger, as an eligible person, with a statement of reasons. There is no suggestion that SafeWork opposed the request. The Order was made. While the Order imposed an obligation SafeWork, which was a party to the MUA Application, it was not an order made inter partes in relation to the MUA Application.
30. I regard the Order as standing apart from the MUA Application. It was a separate invocation of the Commission's jurisdiction, albeit in relation to the same factual circumstances which led to the MUA Application.
31. This gives rise to the next contention made by SafeWork, namely that an eligible person is only able to invoke s 229(2)(c) in proceedings before the Commission which have been validly commenced.
32. As noted at [32] above, SafeWork's submissions on the construction of s 229(2) were directed to the particular circumstances of this case. It is appropriate to similarly confine the consideration of the question posed at [51] to those circumstances.
33. During the hearing I had the following exchange with Ms Carpenter (Tcpt p 12 (30) - 13 (13)): "COMMISSIONER: Just on the nullity point, I understand the submission you make. The proceedings that were commenced by the union in the other proceedings were improperly commenced and were dismissed. Why does it follow that the order that was made must necessarily fall away? Why can't that stand apart? CARPENTER: Commissioner, it can't stand apart because the proceedings were invalid. It is as if the proceedings-- COMMISSIONER: Had never existed. CARPENTER: --had never existed. COMMISSIONER: My point exactly. Why do you need proceedings in order to invoke a power under para (c)? CARPENTER: Well, 229(2)(c) would come into operation where you may have several eligible persons and one of them may have received the decision but others may not have received the decision. So, for example, eligible person A commences proceedings. He or she has received the reasons and has decided that he or she wants to commence the proceedings. Eligible person B has not received [that] statement of reasons and comes along to the Commission and asks for a direction that [that] statement of reasons be provided to them. Then that person has the opportunity to consider, fourteen days, whether he or she wants to commence their proceedings and that would be a perfectly-- COMMISSIONER: So you're saying that the only circumstances in which the power under (c) could be invoked is if there are extant proceedings on foot that have been properly commenced that would allow this Commission to exercise its jurisdiction. CARPENTER: I'm not sure how there could be any other operation."
34. SafeWork noted the use of "the eligible person" in s 229(2)(c) as compared "the applicant" in s 229(2)(a) and (b). It was submitted that this demonstrated an intention that "the eligible person" might be able to seek an order under para (c) in connection with an application (validly) commenced by "the applicant" under paras (a) or (b).
35. I do not agree with this interpretation. It is necessary to consider the context of s 229 as a whole. Section 229(1) allows an eligible person to apply to the Commission for an external review of a reviewable decision. Section 229(2) stipulates the time(s) within which any such application must be made. As already stated at [30] above, s 229(2)(a), (b) and (c) operate as alternatives. In this context, the reference to eligible person in para (c) is more properly to be regarded as referencing the person entitled by s 229(1) to make the application.
36. A difficulty with SafeWork's submission outlined at [51] above is that it fails to properly recognise the purpose of s 229(2)(c), which is to establish a time limit within which an application under s 229(1) can be made. In so far as the relevant eligible person is concerned, it must be the case that an order under para (c) precedes the commencement by that eligible person of proceedings. It is, after all, the order which sets the time for the commencement of proceedings. To suggest a construction that presupposes the prior commencement of proceedings by the eligible person is not only to misapprehend the provision, but to call into question the purpose or utility of s 229(2)(c).
37. A further difficulty with the submission is that it would effectively lead to a construction of s 229(2) along the lines addressed at [26] to [30] above. That is, once the eligible person has received notice of the reviewable decision and 14 days has elapsed, they would be precluded from seeking the assistance of the Commission under s 229(2)(c), at least until another eligible person commences proceedings. Why they should be able to invoke para (c) at that time but not before is not at all apparent, other than on technical or formal grounds.
38. It is necessary to consider the nature of the Commission's jurisdiction as conferred by the IR Act. I note the following provisions in particular: 146 General functions of Commission (1) The Commission has the following functions: (a) setting remuneration and other conditions of employment, (b) resolving industrial disputes, (c) hearing and determining other industrial matters, (d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister, (e) functions conferred on it by this or any other Act or law. (2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. … 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission: (a) is to act as quickly as is practicable… … 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. …
39. These provisions, and in particular s 163(1), inform the approach that the Commission must take in exercising its jurisdiction. There is nothing in the WHS Act which in any way modifies these provisions in the context of the present case.
40. To accept SafeWork's submissions - that the Order was of no effect as the application for it was not made in proceedings validly brought before the Commission - would be to ignore the provisions of the IR Act set out above, and the nature of the Commission's jurisdiction. Such an approach would be wholly constrained by technicalities and legal forms.
41. Further, to deprive Mr Kreger of the opportunity to bring the application would not in my opinion be in the public interest. I say that having regard to the circumstances of this case, noting in particular the following facts: 1. Mr Kreger became aware of the relevant decision on 15 June 2018. 2. The MUA purported to make an application to review the decision on 29 June 2018. This was within the time limit in s 229(2)(b), albeit the MUA incorrectly commenced proceedings in its name and not that of Mr Kreger: see MUA Decision. 3. On 14 August 2018 SafeWork complied with the Order made on 3 August 2018. 4. On 27 August 2018 Mr Kreger commenced these proceedings. Again, this was within the timeframe mandated by s 229(2)(c).
42. This history does not disclose an applicant who is heedless of or indifferent to the requirements of the WHS Act. That the MUA Application may have been commenced in the name of the MUA as opposed to Mr Kreger's is not something for which he can be held accountable. To deprive him of the opportunity to make the application on technical or formal grounds is to punish him for matters which may ultimately have been outside his control.
43. I recognise the submissions made by SafeWork that there is a risk in allowing Mr Kreger's application to stand, in that it may lead to a view that s 229(2)(b) can simply be bypassed through an application to the Commission under s 229(2)(c). To be clear, I consider that s 229(2) does indeed allow for that possibility. However, the jurisdiction conferred on the Commission by s 229(2)(c) is discretionary. Any delay between the eligible person receiving notice of the relevant decision and the application to the Commission, and the reason for that delay, would be relevant to whether the Commission should exercise its discretion.
44. Consistent with the provisions of the IR Act, this case calls for a practical and common sense approach.
45. It is clear that from June 2018 Mr Kreger sought to challenge the decision by SafeWork to cancel the PIN. When an objection was taken to the eligibility of the MUA to make the application (which it did for all intents and purposes on Mr Kreger's behalf) an order under s 229(2)(c) was sought. It can be assumed that the reason for the request was to attempt to preserve Mr Kreger's ability to commence separate proceedings in his own name, which is precisely what he did.
46. There is no suggestion that SafeWork opposed, on 3 August 2018, the making of the Order. It did not challenge or appeal the Order, but rather expressly took steps to comply with it. In its letter to Mr Kreger dated 14 August 2018 SafeWork advised Mr Kreger that it was providing him with a copy of the statement of reasons, "in order to comply with the orders made by the IRC": see [15] above.
47. For the reasons stated I regard the Order as having properly been made, in accordance with both the WHS Act and the IR Act. The Application was not made out of time. The MUA Decision does not impact on the validity or enforceability of the Order, which was capable of being relied on by Mr Kreger.
48. I do not accept SafeWork's submissions to the contrary.
49. It follows that these proceedings have properly been commenced by Mr Kreger.
50. The matter will be listed for conciliation. I will hear the parties as to an appropriate date on which to list the matter.

Orders

1. I make the following orders: 1. The jurisdictional challenge to these proceedings brought by SafeWork NSW is dismissed. 2. The matter will be listed for conciliation on a date to be fixed. Damian Sloan 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: 18 January 2019