Emma Williams v Health Services Union NSW ABN 85037751682 and Anor

Consideration

Ms Williams has agreed to the first order sought in the Motion, namely, that the name of the first respondent be changed. I am satisfied that the HSU is the proper respondent, being the PCBU to whom the improvement notices was issued. I will make an order to give effect to the agreed position.
The question which remains to be determined is whether Ms Williams was entitled under the Work Health and Safety Act to bring the Application.
By virtue of s 229 of the Work Health and Safety Act, an application for external review can only be made by an "eligible person". The section is in these terms: 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.
Section 223(1) of the Work Health and Safety Act defines "eligible person" by reference to the relevant "reviewable decision". In the context of a decision made under s 191, an eligible person is defined to include a person in one of the following categories set out in item 7 of the subsection: 1. the person to whom the notice was issued; 2. a person conducting a business or undertaking whose interests are affected by the decision; 3. a worker whose interests are affected by the decision; and 4. a health and safety representative who represents a worker whose interests are affected by the decision.
The principles of statutory construction are well settled. They were helpfully summarised in Certain Lloyds Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56. French CJ and Hayne J outlined the relevant principles at [23] - [26]. I need not reproduce those passages in their entirety but I note, in particular, their Honours' statements as follows: "24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. 25. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure….'[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.'" (Footnotes omitted)
In the same case Crennan and Bell JJ stated: "70. Whilst consideration of extrinsic materials should not displace the clear meaning of the text of a provision, the purpose of a provision may be elucidated by appropriate reference to them. It has often been said that the clear meaning of the text of a statute or a statutory provision is the surest guide to the meaning of 'the intention of the legislature', an expression used metaphorically. Nevertheless, it is uncontroversial that in determining the meaning of the text of a statute or provision a court may take into account the general purpose and policy of a provision and, in particular, the mischief that it is intended to remedy…" (Footnotes omitted)
Keifel J stated: "88. The fundamental object of statutory construction is to ascertain legislative intention, understood as the intention that the courts will impute to the legislature by a process of construction, by reference to the language of the statute viewed as a whole. The starting point for this process of construction is the words of the provision in question read in the context of the statute. Context is also spoken of in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy. 89. It is legitimate to resort to materials outside the statute, but it is necessary to bear in mind the purpose of doing so and the process of construction to which it is directed. That purpose is, generally speaking, to identify the policy of the statute in order to better understand the language and intended operation of the statute. An understanding of legislative policy by these means does not provide a warrant for departing from the process of statutory construction and attributing a wider operation to a statute than its language and evident operation permit." (Footnotes omitted)
In Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 the majority of the High Court stated: "57. The criticism is misplaced. As was earlier observed, 'adversely affect' is a protean expression capable of a number of meanings according to the context in which it appears. The technique of statutory construction is to choose from among the range of possible meanings the meaning which Parliament should be taken to have intended. Contrary to counsel's submission, there was and is nothing impermissible about looking to the context in which s 8(2) appears or seeking guidance from the objects of the ICAC Act as stated in s 2A. Rather, as Mason J stated in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, it was and is essential to do so: '[T]o read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation; Attorney-General v Prince Ernest Augustus of Hanover. Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.'" (Footnotes omitted)
Mr Boncardo referred me to several authorities to a similar effect.
It is common ground that category 2 in item 7 of s 223(1) does not apply to Ms Williams. She claims, however, that she falls within one, if not all, of the remaining categories.
In support of her claim in relation to category 1, Ms Williams tendered minutes of a meeting of the HSU's work health and safety committee on 15 November 2018. Those minutes reflect that copies of the improvement notices were circulated at that meeting.
Ms Williams also identified that each improvement notice contained an annotation at the bottom of the first page indicating that a copy was provided by SafeWork NSW to an HSR. During her submissions, Ms Williams stated that she believed, but could not be certain, that she had received an email from SafeWork NSW attaching a copy of the improvement notices.
I do not consider that being provided with a copy of an improvement notice amounts to Ms Williams having been issued with the notice within the meaning contemplated in s 223. In this regard, I note ss 191 and 192 of the Work Health and Safety Act which are in these terms: 191 Issue of improvement notices (1) This section applies if an inspector reasonably believes that a person: (a) is contravening a provision of this Act, or (b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. (2) The inspector may issue an improvement notice requiring the person to: (a) remedy the contravention, or (b) prevent a likely contravention from occurring, or (c) remedy the things or operations causing the contravention or likely contravention. 192 Contents of improvement notices (1) An improvement notice must state: (a) that the inspector believes the person: (i) is contravening a provision of this Act, or (ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated, and (b) the provision the inspector believes is being, or has been, contravened, and (c) briefly, how the provision is being, or has been, contravened, and (d) the day by which the person is required to remedy the contravention or likely contravention. (2) An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates. (3) The day stated for compliance with the improvement notice must be reasonable in all the circumstances.
Those sections clearly anticipate that an improvement notice is "issued" to the person who has contravened or is contravening the legislation. It is that person who must remedy the contravention. Identifying the person to whom a notice has been issued for the purposes of s 223(1) must be considered in that context.
I note that each of the improvement notices expressly provides that it is being issued to the HSU.
In relation to categories 3 and 4, the evidence demonstrates that within the HSU there are three relevant workgroups. Ms Williams is in the Industrial Services Division and until 27 February 2019 she was an HSU for that workgroup.
The terms of the inspection report dated 14 November 2018, reproduced in part above, and the improvement notices clearly draw a distinction between the three workgroups. Indeed, the inspection report confirms that there were no "significant risks" identified in relation to the Industrial Services Division. In her material, Ms Williams stated that the results for her workgroup were "satisfactory". The improvement notices, on their terms, related only to the Member Services Division/Call Centre and HSU Union Organisers workgroups respectively.
At [16] of her affidavit, Ms Lewis stated as follows: "16. When Ms Harris met with the workers for the purposes of conducting her investigations the subject of the Improvement Notices issued (Notices 7-343026 & 7-343032), Ms Harris met with workers from the MSD, Union Organisers and ISD as distinct work groups. Ms Harris met with the MSD work group on 19 September 2018 and with the ISD work group on 21 September 2018."
In this context, it is necessary to determine whether Ms Williams falls within the definition in s 223(1) of the Work Health and Safety Act.
The question of workgroups and the roles and responsibility of HSRs in connection to workgroups requires consideration in this case. I note the following provisions of the Work Health and Safety Act: 51 Determination of work groups (1) If a request is made under section 50, the person conducting the business or undertaking must facilitate the determination of one or more work groups of workers. (2) The purpose of determining a work group is to facilitate the representation of workers in the work group by one or more health and safety representatives. (3) A work group may be determined for workers at one or more workplaces. … 68 Powers and functions of health and safety representatives (1) The powers and functions of a health and safety representative for a work group are: (a) to represent the workers in the work group in matters relating to work health and safety, and (b) 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, and (c) to investigate complaints from members of the work group relating to work health and safety, and (d) 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. (2) In exercising a power or performing a function, the health and safety representative may: (a) inspect the workplace or any part of the workplace at which a worker in the work group works: (i) at any time after giving reasonable notice to the person conducting the business or undertaking at that workplace, and (ii) at any time, without notice, in the event of an incident, or any situation involving a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, and (b) accompany an inspector during an inspection of the workplace or part of the workplace at which a worker in the work group works, and (c) with the consent of a worker that the health and safety representative represents, be present at an interview concerning work health and safety between the worker and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (d) with the consent of one or more workers that the health and safety representative represents, be present at an interview concerning work health and safety between a group of workers, which includes the workers who gave the consent, and: (i) an inspector, or (ii) the person conducting the business or undertaking at that workplace or the person's representative, and (e) request the establishment of a health and safety committee, and (f) receive information concerning the work health and safety of workers in the work group, and (g) whenever necessary, request the assistance of any person. Note. A health and safety representative also has a power under Division 6 of this Part to direct work to cease in certain circumstances and under Division 7 of this Part to issue provisional improvement notices. (3) Despite subsection (2)(f), a health and safety representative is not entitled to have access to any personal or medical information concerning a worker without the worker's consent unless the information is in a form that: (a) does not identify the worker, and (b) could not reasonably be expected to lead to the identification of the worker. (4) Nothing in this Act imposes or is taken to impose a duty on a health and safety representative in that capacity. 69 Powers and functions generally limited to the particular work group (1) A health and safety representative for a work group may exercise powers and perform functions under this Act only in relation to matters that affect, or may affect, workers in that group. (2) Subsection (1) does not apply if: (a) there is a serious risk to health or safety emanating from an immediate or imminent exposure to a hazard that affects or may affect a member of another work group, or (b) a member of another work group asks for the representative's assistance, and the health and safety representative (and any deputy health and safety representative) for that other work group is found, after reasonable inquiry, to be unavailable. (3) In this section, another work group means another work group of workers carrying out work for a business or undertaking to which the work group that the health and safety representative represents relates.
Further, reg 16 of the Work Health and Safety Regulation 2017 (NSW) provides as follows: 16 Negotiations for and determination of work groups Negotiations for and determination of work groups and variations of work groups must be directed at ensuring that the workers are grouped in a way that: (a) most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented, and (b) has regard to the need for a health and safety representative for the work group to be readily accessible to each worker in the work group.
These provisions, and in particular s 69(1), make it clear that, as far as the Work Health and Safety Act itself is concerned, an HSR's powers and functions are generally to be regarded as confined to their workgroup, subject, obviously, to s 69(2).
Ms Williams relied on the particular role and responsibilities of HSRs which she asserted applied in the HSU's workplaces. She stated, to paraphrase her submissions, that these practices disentitled the HSU from relying on a technical construction or application of the legislation.
There are two things to say to this. Firstly, this evidence was raised for the first time in Ms Williams' submissions. The HSU did not have an opportunity to respond to or test it. I must be wary of giving it too much weight.
Secondly, and more significantly, how HSRs might conduct themselves in an operational sense at the HSU is of limited assistance in interpreting and applying the legislation, having regard to the authorities mentioned previously.
In the context of the Work Health and Safety Act as a whole, it would be incongruous if s 223(1), with its reference to a "health and safety representative who represents a worker", was seen as conferring a broader right of representation on an HSR than that conferred by s 68 and 69. Such a construction would seem inconsistent with the scheme established by the Act. To my mind, it would require clear and unambiguous language if that construction of s 223 was intended by the legislature.
For these reasons, I am not satisfied that Ms Williams falls within the fourth category in item 7 of s 223(1).
This leaves the question of whether Ms Williams is a "worker whose interests are affected by the decision".
I have been unable to identify any authority that directly bears on the meaning of the term "worker whose interests are affected" in the precise context of s 223(1) and neither party referred me to any. It is, therefore, necessary to see how the words have been construed in other legislative contexts.
In Re McHattan v Collector of Customs (1978) 18 ALR 154, Brennan J, then the President of the Administrative Decisions Tribunal, stated at p 157: "However, a decision which affects the interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interests, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of [the legislation]. The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected."
In Allan v Transurban City Link Limited (2001) 208 CLR 167; [2001] HCA 58 the majority stated: "15. The expression 'affected by' and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as 'standing'. 'Standing' is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies. … 17. Transurban correctly submitted that the phrase in s 119(1) of the Authority Act 'who is affected by a reviewable decision' has an ambulatory operation. What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself. …" (Footnote omitted)
Kirby J, in dissent on the result but not on the principles, stated: "54. The true starting point for analysis was a close examination of the legislation in question. In this respect I agree with the approach adopted by the joint reasons. There is a contemporary tendency, noted in other cases, to avoid or postpone such statutory analysis out of a preference for the general observations of judges concerning identical or analogous legislative provisions or principles of the common law. In a case such as the present the correct answer is likely to be masked by such an approach. … 57. In the present case, two main controlling devices have been enacted by the Parliament to limit the range of persons who might obtain review of a DAA decision to grant a certificate of the kind that the appellant now wishes to challenge before the AAT. The first device is the requirement, in s 119 of the DAA Act, that the person initiating the first step (seeking reconsideration by the DAA of its own decision) must be one 'who is affected' by a reviewable decision. The second is that the person making application to the AAT must be one 'whose interests are affected by the decision'. 58. There are common features in these two gateways. Each of them refers to a 'decision'. In each, the relevant 'decision' must be one made under an enactment that renders the decision reviewable by the AAT. And each of the legislative formulae uses the verb 'affected'. However, there are also some differences. The requirements arise at different times. That in s 119(1) of the DAA Act arises earlier in time, when the 'reviewable decision' is made by the DAA. That in s 27 of the AAT Act arises when the validity of 'an application ... to the [AAT] for a review of a decision' is questioned. That under s 119(1) of the DAA Act talks generally of '[a] person who is affected'. But that under s 27(1) of the AAT Act requires that the person's 'interests' must be affected by the decision in question. On the face of this statutory language, contrary to the view adopted in the joint reasons, s 119(1) of the DAA Act is concerned with a wider question of affection. Its focus is upon the entire person in question, who may then set in train a course of events leading to, if necessary, application to the AAT for review. Yet to engage the powers of the AAT, it is not apparently sufficient that the person is affected. It is necessary that that person's interests must be affected. 59. The foregoing differentiation may suggest a narrowing of the range of those who can initiate statutory action for review when one gets to the stage of the AAT. Whatever 'interests' mean (and they may, depending on the statute, go far beyond the traditional property interests with which the common law and equity were typically concerned) they tend to narrow the focus of those who may lawfully engage the powers of the AAT and oblige it to conduct a review." (Footnotes omitted)
The case of Argos Pty Limited and Ors v Corbell and Ors (2014) 154 CLR 394; [2014] HCA 50 involved legislation which made reference to a person whose interests were "adversely affected" by the relevant decision. French CJ and Keane J stated: "43. Consistently with that proposition it will be necessary to have regard to the enactment under which the impugned decision is made and the legal effect and operation of the decision in order to determine how the interests of the applicant for review may be adversely affected or the applicant otherwise a person aggrieved."
Hayne and Bell JJ stated: "66. The ADJR Act provides for judicial review of decisions made under many different enactments. It should go without saying that regard must be had to the subject matter, scope and purpose of the ADJR Act in construing the words of s 3B(1)(a): 'a person whose interests are adversely affected by the decision'. But content cannot be given to that expression, in its application to a particular decision, without regard to the subject matter, scope and purpose of the Act under which the decision was made and the proper construction of that Act. Only then can the relationship between the impugned decision and the interests said to be affected adversely be properly identified. 67. Often, perhaps very often, the connection between decision, interests and asserted effect will be obvious and evidently relevant. But that may not always be so, and in such a case it will be necessary to identify both the interest of the applicant relied on, and whether it is adversely affected by the decision, having regard to the proper construction and application of the Act under which the impugned decision was made." (Footnote omitted)
In Re Metserv - FIA/ASE Wyalla agreement (1992) 42 IR 463, it was stated at p 472 that the meaning intended by the legislature to be given to the words "affected by" is best ascertained by reference to the language actually used in the statutory provisions, coupled with the consideration of the purpose for which it was passed.
Mr Boncardo sought to distil from these authorities four principles, which I will paraphrase as follows: 1. The starting point is one of the proper construction of the legislation. 2. The word "affected" is ambulatory but is limited by the word "interests", which is designed to narrow the scope of eligible persons within the meaning of the section. The use of the noun "interests" is significant. 3. The Commission is required to make an assessment of the legal effect and operation of the decision and then give consideration to the interests asserted to be affected. 4. There needs to be a connection between the decision and the interests of the worker asserted that is of a sufficient intensity to be able to satisfy the Commission that the worker is one whose interests are affected.
With respect, that is a reasonably accurate summation of the principles.
The HSU submitted, and I accept, that in enacting ss 223 and 229 the legislation "has determined to confer standing on limited classes of persons". At [23] in its submissions, the HSU stated: "Section 223 thus seeks to confer standing to seek internal and external review of reviewable decisions but to strictly define and delimit the classes of persons capable of applying for such reviews."
It is consistent with such an intention, and the authorities referred to, that an applicant be able to demonstrate both their interests and how they are affected by the relevant decision. To my mind, this must be an actual, as opposed to a theoretical or in-principle, affection.
On the case presented by Ms Williams, I cannot be satisfied that she has demonstrated that she has a relevant interest, within the meaning of the legislation, which will be affected by the Decision. Her case largely comes down to the assertions that there are systemic failures by the HSU to comply with its work health and safety obligations, including through proper consultation with employees. As an employee of the HSU and, until reasonably recently, an HSR, she asserts that she has an interest in, essentially, holding the HSU to account. In her material, Ms Williams submitted as follows: "... (3) The Industrial Relations Commission of New South Wales should conduct an external review for all three workgroups identified by SafeWork NSW due to their commonality. I will expand on this in my submission. ... An external review should include the SafeWork NSW survey tools and full report with comments, as well as the HSU NSW mental health at work survey with comments. Comments are direct evidence of how an individual worker feels about the system of work. I am not able to provide the final report, as it has not been provided to workers, but feel that the HSU NSW branch should be required to provide it for the review."
These extracts do not seem to call for a review of the Decision so much as a review of broader work health and safety compliance across the workplace. These submissions misapprehend the nature of the Commission's jurisdiction under s 229 of the Work Health and Safety Act, which is confined to a review of the Decision to set aside the improvement notices.
Ms Williams drew my attention to s 77 of the Work Health and Safety Act, which is in these terms: 77 Functions of committee The functions of a health and safety committee are: (a) to facilitate co-operation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers' health and safety at work, and (b) to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace, and (c) any other functions prescribed by the regulations or agreed between the person conducting the business or undertaking and the committee.
It is at least arguable that an HSR who is a member of a health and safety committee could, by virtue of that role, have interests (as opposed to an interest) that might extend beyond the workgroup that they would otherwise represent. In the present case, however, there is insufficient evidence to enable me to come to a view that such is the case with Ms Williams.
Ms Williams is not to be criticised for expressing an interest in work health and safety and striving to ensure compliance in her workplace. It is indeed commendable. However, as legitimate as it is for her to have an interest in work health and safety, it is not enough, of itself, to demonstrate that having an interest in safety is the same as having an interest that will be affected by the Decision within the meaning of s 223 of the Work Health and Safety Act. Similarly, disappointment in her employer making an application for internal review of the improvement notices and in SafeWork making the decision to set them aside is not, of itself, sufficient interest.
In short, I am not satisfied that the Decision, which relates to improvement notices issued in respect of workgroups of which she is not a member, affects Ms Williams' interests. Further, other than sharing an overarching interest in ensuring work health and safety in the workplace, there does not appear to be a "commonality between the workgroups" that would demonstrate that what affects one would necessarily affect all.
It follows that I find that Ms Williams is not an eligible person within the meaning of s 223 of the Work Health and Safety Act and has no standing to bring an application under s 229.
In Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v SafeWork NSW (2018) NSWIRComm 1053, I outlined the relevant cases and principles to be applied when an application purported to be brought under s 229 is brought by someone who is not an eligible person. I will not repeat that commentary.
Based on the principles outlined in that case, the Application must be dismissed.
Having made that finding, it is not necessary to consider the alternative submissions advanced by the HSU to the effect that the Application is frivolous, vexatious and/or an abuse of process.
I will limit my observations to these. I am not satisfied on the material before me that, in bringing the Application, Ms Williams was actuated by improper or inappropriate motives. The way in which Ms Williams presented her case and the content of her evidence and submissions is indicative more of a layperson unfamiliar with the legislation and the Commission's jurisdiction than of a person who has acted mischievously or, in a calculated way, vexatiously.

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