Rail, Tram & Bus Union NSW Branch v Transport Workers' Union of New South Wales [2020] NSWIRComm 1081 | Case summary

What happened

The case concerned an application by the Transport Workers' Union of New South Wales (TWU) to be added to the party card for the State Transit Authority Bus Operations Enterprise (State) Award 2018. A party card is a register maintained by the Industrial Registrar of parties with an interest in an award. Rule 6.9 of the Industrial Relations Commission Rules 2009 governs that register and applications concerning it.

The TWU filed its application on 15 April 2020. The Rail, Tram & Bus Union NSW Branch (RTBU) was already associated with the award and later appealed the Registrar's decision to add the TWU. A dispute arose over when the RTBU had received the application. The TWU said registered post tracking showed delivery on 8 May 2020. The RTBU said it did not receive it until 13 May 2020. Commissioner Webster found there was no evidence sufficient to resolve that factual dispute.

The Registrar granted the application on 15 May 2020. The decision recorded that a “sufficient interest” had been displayed and directed the Registry to update the party card and notify the parties. But the RTBU had not received notice that the application was to be heard or considered, and it had no opportunity to present submissions before the decision was made. The State Transit Authority Group of the Transport Service of New South Wales (STA) also said it had not had an opportunity to put forward submissions.

The RTBU appealed on 29 May 2020. The appeal was determined on written submissions, without an oral hearing, by agreement of the parties. The central issue was whether the process followed by the Registrar denied procedural fairness.

Commissioner Webster allowed the appeal. The orders quashed the Registrar's decision and directed the Registrar to redetermine the application in accordance with the judgment. The Commission did not decide whether the TWU ultimately had a sufficient interest to be added to the party card. That issue was left for reconsideration through a process that gave affected parties an opportunity to be heard.

Why the court decided this way

The Commission reasoned from the character of the party-card process, the statutory framework, and the lack of an opportunity to participate.

Rule 6.9(3) permits an application for inclusion on a party card by a “party”, which the rule defines by reference to an interest in an award or involvement in its making or variation. Rule 6.9(5) provides that parties recorded on a party card “must be served with any application concerning the award”. The judgment noted that the language of that rule was unclear as to whether service was required on named parties or all persons and organisations recorded on the card. Commissioner Webster considered that an interpretation limited to named parties could frustrate the party card's function of informing those with an interest in the award about applications concerning it.

Rule 6.9(7) also mattered to the Commission's understanding of the scheme. It allows another party to an award to apply to remove a party from the card. The judgment treated this as indicating that parties on the card may put arguments before the Commission about whether an organisation should or should not be listed. These provisions formed part of the context for deciding that affected parties should have the opportunity to respond to an application for inclusion.

The Commission then addressed its procedural obligations. Section 163(1) of the Industrial Relations Act 1996 (NSW) says the Commission is not bound to act formally or to follow the rules of evidence, and must act according to equity, good conscience and the substantial merits of the case. Commissioner Webster accepted that informality did not displace the requirement to act fairly. The judgment relied on the principles set out by the Full Bench in Paula Lee v Energy Australia (No 4), including that procedural questions must be resolved consistently with equity and good conscience, and that the Commission must act judicially.

The judgment also cited Minister for Immigration and Border Protection v WZARH for the general principle that, absent a clear contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. It referred to Kioa v West and F.A.I. Insurances Ltd v Winneke in connection with the fundamental requirement to hear a person before exercising a power that affects that person's rights.

Applying those principles, Commissioner Webster noted that the TWU did not argue that the RTBU was not entitled to object or be heard. The RTBU was affected in the practical and procedural sense that its position as a party to the award gave it an interest in the application process. There was no notice of hearing, and the Registrar decided the application without giving the RTBU a chance to put its case.

The uncertainty about service did not change the result. The Commission could not determine whether service occurred on 8 or 13 May. But it accepted that even on the TWU's account of service on 8 May, the Registrar issued the decision before the end of a clear seven-day period. More importantly, there was no hearing notice and no effective opportunity to participate before determination.

The TWU argued that any denial of fairness would not have changed the result because its interest in the award was persuasive. It relied on Stead v State Government Insurance Commission in support of its position. The Commission did not accept that argument as a reason to leave the decision in place. The RTBU referred to a longstanding agreement with the TWU about coverage of bus operations in NSW. Commissioner Webster did not decide whether that agreement affected the application. The point was that the RTBU should be able to put that argument, and any other relevant argument, before the decision-maker. The Commission expressly included the STA among the parties who should have that opportunity.

Before and after state of the law

The judgment does not set out a comprehensive “before and after” account of the law. It applies established procedural fairness principles to the particular party-card process under rule 6.9.

Before the appeal decision, the Registrar had granted the TWU's application on the basis that a sufficient interest had been displayed. The original decision did not follow a process that gave the RTBU notice of a hearing or an opportunity to make submissions before determination. The appeal decision set that result aside.

After the appeal decision, the operative result was not a determination that the TWU lacked an interest or that it must be added. Instead, the application returned to the Registrar for redetermination. The procedural requirement identified was that affected parties should have an opportunity to contest relevant factual matters and present their cases before the application was resolved.

The judgment's reasoning links that requirement to existing sources rather than announcing a wholly new test. It applies the general fairness principle cited from WZARH, the Commission's statutory obligation under s 163(1), the procedural principles in Paula Lee, and the party-card rules. Its practical clarification is that informality in Commission procedure is not a licence to decide an affected party's application without giving other affected parties a fair opportunity to be heard.

The decision also emphasises that the question of procedural fairness is separate from the substantive question whether an applicant has a sufficient interest under rule 6.9. The Commission considered the TWU's submissions persuasive, but that view did not determine the application on its merits or excuse the absence of a fair process.

Key passages with plain-English translation

The judgment's clearest statement of the procedural defect is: “There was no Notice of Hearing and there was a denial of an opportunity to be heard on the application.” In plain English, the RTBU had not been told that the Registrar would decide the application and had no chance to respond before the decision was made.

Commissioner Webster stated that the precise service date could not be determined because there was no affidavit of service in the appeal or original file. The Commission nevertheless accepted that, even if the TWU's stated 8 May delivery date were correct, the decision was made before a clear seven days had elapsed. This observation matters because the fairness concern was not resolved simply by accepting the applicant's preferred version of the service facts.

The Commission also explained why the possibility that the RTBU might not ultimately succeed did not answer the procedural complaint. It said it was fair for the RTBU to have “an opportunity to contest the factual matters contained in the application through evidence and put forward their own case”. In plain English, the Registrar had to hear the affected party's case rather than assume that the applicant's case would prevail.

The reference to the alleged longstanding agreement between the unions illustrates the point. The Commission did not decide what the agreement meant or whether it would affect the application. It said it “may or may not bear upon the outcome”, but the RTBU should have an opportunity to make its argument. The judgment therefore preserves the distinction between granting a hearing and deciding the merits.

Finally, the Commission said: “Indeed, all the parties on the party card should be given that opportunity, including the STA.” This makes clear that the fairness concern was not confined to the appellant alone. The decision identified the need for a process that enabled affected recorded parties, including the STA, to participate.

What fact patterns trigger this precedent

The decision is relevant to procedural settings where an application concerning an industrial award is determined without an affected party having notice or a meaningful opportunity to respond. Its specific context is an application under rule 6.9 to add an organisation to a party card, but the reasoning focuses on the combination of an affected party, an application concerning the award, and a decision made before that party could present its case.

The judgment is particularly relevant where a party is recorded on an award party card and an application is made that could affect participation in the award's administration or future proceedings. Rule 6.9(5) requires service on parties recorded on the card, and the judgment reads the rule in light of the card's purpose of informing interested parties about applications concerning the award.

It also addresses cases where service is disputed or occurs shortly before a decision. The Commission did not resolve whether delivery occurred on 8 or 13 May 2020. It considered that the absence of a hearing notice and the lack of an opportunity to be heard remained important even on the applicant's asserted service date.

The precedent should not be overstated. The Commission did not decide that every procedural irregularity requires a decision to be set aside, nor did it determine the substantive meaning of “sufficient interest” in rule 6.9. It decided that, in this case, the appellant and other affected parties should have an opportunity to contest factual matters and make submissions before the application was redetermined.

How later courts have treated it

The judgment text provided here contains no account of later judicial or tribunal treatment of this decision. It identifies no subsequent case that followed, distinguished, applied, or criticised Rail, Tram & Bus Union NSW Branch v Transport Workers' Union of New South Wales. No later-treatment history can therefore be stated on the basis of this source.

Within this judgment, Commissioner Webster draws on earlier authorities. Paula Lee v Energy Australia (No 4) is used for principles concerning procedural questions in industrial proceedings. WZARH is cited for the general obligation of administrative decision-makers to accord procedural fairness to affected persons absent a clear contrary legislative intention. Kioa v West and F.A.I. Insurances Ltd v Winneke are referred to in connection with the fundamental hearing requirement. Stead is addressed in relation to the argument that an alleged denial of fairness would not warrant setting aside the decision.

The judgment's own treatment of those authorities should be kept distinct from any later history. It applies the fairness principles to the Registrar's process and orders reconsideration. The source supplied does not establish how later courts or the Commission have interpreted or limited that holding.

Still-open questions

The first issue left open was the substantive question whether the TWU had a sufficient interest in the award for the purposes of rule 6.9. The TWU relied on its eligibility rules, the kinds of employees covered by the award, and its existing and anticipated membership among employees affected by copied State awards. Commissioner Webster described the TWU's submissions on interest as persuasive, but the decision did not resolve the merits after hearing the RTBU and STA.

The exact scope of rule 6.9(5) was also not definitively settled. The judgment identified ambiguity over whether the rule required service on named parties or all parties recorded on the party card. It favoured an interpretation consistent with the card's purpose, but the appeal was resolved on procedural fairness grounds rather than by a final textual ruling defining every service obligation.

The judgment did not determine the relevance or effect of the alleged longstanding agreement between the RTBU and the TWU about coverage of bus operations in NSW. It left the RTBU free to put forward its position on that matter during redetermination, without expressing a conclusion about its factual or legal significance.

Nor did the decision specify a universal period of notice for applications of this kind. It noted that the decision came before a clear seven days had elapsed even if service occurred on 8 May, and also that there had been no hearing notice. The source does not establish that seven days is a generally applicable minimum period in every party-card matter.

Finally, the judgment did not decide whether a different procedural process, such as a properly notified determination on written submissions, would necessarily be sufficient in every case. The holding is grounded in the actual circumstances: no hearing notice, no opportunity for the appellant to present its case, and an affected STA that also lacked an opportunity to contribute. The Registrar was directed to redetermine the application consistently with the decision.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

Judgment (8 paragraphs)

[1]

Judgment

Before the Commission is an appeal by the Rail, Tram & Bus Union of NSW Branch (the appellant) against a decision of the Industrial Registrar made on 15 May 2020 to add the Transport Workers' Union of NSW (the applicant) to the party card for the State Transit Authority Bus Operations Enterprise (State) Award 2018 (the Award) under s 194 of the Industrial Relations Act 1996 (NSW) (the Act).
The background to this matter is as follows. On 15 April 2020, the applicant filed an application with the Commission to be added to the party card of the Award.
There is some contention as to when the appellant was served with the application. The applicant says that the appellant received the application by way of registered post on 8 May 2020. The appellant claims that the application was not in fact received until 13 May 2020.
The appellant did not receive any notification of a hearing before the Commission with respect to the application, nor was it notified that the matter was being considered by the Commission.
On 13 May 2020, the Office of the Industrial Registrar corresponded with the applicant to the effect that the Industrial Registrar required proof of service on all respondents indicated on the application. On 13 May 2020, the applicant responded to that request stating: "please see attached copies of correspondence dated 6 Mary (sic) 2020 to the other parties in this matter which served the TWU's Application dated 17 April 2020. Can you please confirm that this satisfies the Registrar. If an Affidavit of Service is required, please advise and I can provide one, it has just been difficult to have this witnessed with many people working from home."
On 15 May 2020, the Industrial Registrar issued orders granting the application joining the applicant to the party card of the Award (the Decision). The Decision is in the following terms: "1. Registrar grants the application of the Transport Workers' Union of New South Wales to be added to the party card for the specified award. 2. I am satisfied a sufficient interest has been displayed. 3. Industrial Registry to update party card. 4. Registry to notify parties."
On 19 May 2020, a Notice of Appearance was filed on behalf of the State Transit Authority Group of the Transport Service of New South Wales (the STA).
On 21 May 2020, the STA wrote to the Office of the Industrial Registrar, relevantly stating: "My understanding from the telephone conversation was that this matter has been closed following a decision made by the Registrar on the previous Friday to approve the Applicant's application. I note that the Respondent did not receive a copy of the relevant documents until 12 May 2020 (enclosed). The documents that were served on the Respondent did not appear to be a Service Copy and contained an incorrect matter number. The documents also did not provide any filing requirements, with an exception that Notice Of (sic) Appearance must be filed and served within 7 days, which the Respondent attempted to do via my email on 19 May 2020. These factors lead to the Respondent not having an opportunity to put forward submissions for the Commission's consideration, before the matter was decided and closed. I would like to request a copy of the outcome, and information on a process to have the matter open."
On 26 May 2020, the applicant enquired about the status of the application and was informed by the Industrial Registrar that it had been approved on 15 May 2020.
On 29 May 2020, the appellant filed an appeal against the Decision. The parties agreed that the Commission consider this appeal based on the written submissions of the parties to the appeal without a hearing.
The appellant claims that it was denied procedural fairness in the Decision, by the Industrial Registrar: 1. failing to notify the parties to the Award of the pending determination of the application; 2. failing to enquire as to whether the application had been properly served on the parties to the Award; and 3. thereby denying the parties to the Award the opportunity to be heard on the application.
I have decided for the reasons contained in this judgement to quash the Decision and remit the matter to the Industrial Registrar for reconsideration.

[2]

Relevant law and legal principles

Under s.194 of the Act, the appellant does not require leave to appeal the Decision.
Further, under s.194(5), the Commission may, in respect of an appeal: (a) confirm, quash or vary the decision concerned, (b) make a decision dealing with the subject-matter of the decision concerned, (c) direct the Industrial Registrar to take further action to deal with the subject-matter of the decision as directed by the Commission."
Rule 6.9 of the Industrial Relations Commission Rules 2009 (the Rules), provides for the maintenance of party cards by the Industrial Registrar in respect of industrial awards made by the Commission. It is in the following terms: "6.9 Party cards (1) In this rule: party means a person or an organisation that has an interest in an award, or in the making of an application in respect of an award, or that has otherwise participated in the making or variation of an award. party card means a register of parties, maintained by the Registrar, that have an interest in an award. (2) The Registrar must maintain a system of party cards. (3) Application for inclusion on the party cards may be made to the Registrar in the approved form. (4) The Commission may direct that a party be added to or removed from a party card in respect of a particular award or awards. (5) Parties to an award that are recorded on a party card must be served with any application concerning the award. (6) A party may be removed from a party card by the Commission, provided that the party has been given at least one month's written notice (to be been sent to the party's last known address) of the proposal to do so. (7) An application to remove a party from a party card in relation to an award may be made by any other party to the award."
Rule 6.9(3) allows an application to be made for inclusion onto a party card by a "party". To be a "party", an organisation must have an "interest" in the particular award.
Rule 6.9 (5) imposes an obligation upon a party making an application in respect of an award that they serve the parties to an award recorded on the party card. The wording of the rule is somewhat unclear in that on one reading, it only obliges an applicant making an application in respect of an award to inform named parties to the award (as contained on the party card) rather than any person or organisation contained on the party card. Such an interpretation would seem to circumvent the purpose of the party card, namely to ensure that persons with an interest in the award are informed when someone is making an application in respect of it.

[3]

The appellant's submissions

The appellant filed written submission on 22 June 2020.
In summary, the appellant submitted that it was denied procedural fairness by the process adopted by the Industrial Registrar in determining the application, because the appellant was not provided with an opportunity to make submissions in respect of the application that may have had an impact upon the Decision.
The appellant contended that had it been provided with an opportunity to be heard in the application, it would have likely submitted that the applicant's interest in the award was not sufficient to satisfy the Industrial Registrar it should be place on the card pursuant to rule 6.9 of the Rules.
The appellant contended that the failure to provide procedural fairness arose because: 1. The applicant did not serve the appellant with the application until 13 May 2020, which was only 2 days before the Industrial Registrar approved it; and 2. The Industrial Registrar did not notify the appellant of her intention to hear the application on the papers and ultimately to make a determination on the TWU's application.
The appellant submits that in the circumstances, the Decision should be quashed and determined on its merits, with the parties on the party card being provided with procedural fairness to present submissions and or evidence.

[4]

The applicant's submissions

The applicant filed submission on 6 July 2020.
The applicant submitted that: 1. "Australia Post Tracking available to the TWU indicates that the Application addressed to the Appellant was delivered on 8 May 2020 at 12:42 pm"; 2. There was no objection received to the applicant being included on the party card before the Decision; and 3. The applicant has an interest in the award and should be included on the party card.
The applicant summarised its claimed interest in the award as follows at [25] to [39] of their submissions: "The TWU provided in its original application details of the TWU's interest in the Award, which is summarised below. Firstly, the TWU is a registered organisation of employees as per Chapter 5, Part 3, Division 1 of the Industrial Relations Act 1996 (NSW). As per the registered rules of the TWU, rule 5.1.1 provides: An unlimited number of persons (males and females) who are employed in connection with the industry or industries and/or occupations and/or vocations and/or industrial pursuits of the transport on land or by air of persons and/or passengers and/or goods, wares, merchandise or any other material whatsoever by or on vehicles or animals or by motor, steam, oil, electric or other mechanically propelled contrivances; drivers, assistants and conductors of same, and stable and yard work wherever performed, including the work of attendance on vehicles, horses and other beasts of burden, whether in stables or otherwise, training and breaking in of horses, loading and unloading on to and/or from any vehicles; shunting by horse power; sanitary carting and work connected therewith but excepting railways, tramways or lifts, bread carters, pastry carters. The Award binds employees who are bus drivers that transport passengers by vehicle. The Award also binds employees employed in connection with the transport industry. By way of eligibility rules, the TWU is permitted to admit members bound by the Award. Based on this alone, the TWU submits that it satisfies the requirement to have an "interest" in the Award and therefore should be added to the party card of the Award. Secondly, it is anticipated that the Award in the near future will become a "Copied State Award" pursuant to Part 6-3A, Chapter 6 of the Fair Work Act 2009 (Cth). This is because the Award currently covers employees engaged by the New South Wales Government in what are known as Regions 7, 8 and 9, being geographically based timetabled bus services. The New South Wales Government announced that all of these regions will be tendered out to private operators over the coming 12-24 months. Once this occurs, the employment of all employees of the New South Wales Government will be transferred to the new private operator. When this occurs, existing employees covered by the Award will be subject to its content as an industrial instrument registered under the Fair Work Act 2009 (Cth). This is precisely what happened through the privatisation of the Inner-West Sydney passenger bus service (Region 6), whereby the contract for bus services was granted to "Transit Systems". As of 1 July 2018, Transit System employees previously employed by the New South Wales Government (Legacy Employees) have had their employment contracts be governed by a Copied State Award, being the Award in its form as at 1 July 2018. Since 1 July 2018, the TWU has recruited and admitted as members Legacy Employees, whose employment is subject to the Copied State Award. Given that the TWU has the potential to have existing and future members who will be affected by the outcome of the Award in any future versions, it is inherently clear that the TWU has an interest in the outcome of the Award to the extent that it should be notified of applications that relate to it by being added to the party card for the Award. The Appellant has yet to provide any submissions or evidence to demonstrate how it would sustain a position that the TWU has a sufficient interest in the Award to warrant it being added to the party card."

[5]

The appellant's submissions in reply

The appellant filed submissions in reply to the applicant's submissions on 13 July 2020. In summary, the appellant: 1. Maintained that it did not receive the application until 13 May 2020, noting that even if the applicant's claim that it was received on 8 May 2020 is accepted, the Decision was still made within 7 days of service; 2. Argued that had they been given an opportunity to enter a Notice of Appearance, the matter would not have been determined without evidence; and 3. There will be argument with respect to the term "interest" as it is undefined under the Act and whether the applicant has such an interest.

[6]

Consideration

The central issue for determination in the appeal is whether the appellant was denied procedural fairness by not being given an opportunity to oppose the applicant's application to be included on the party card of the Award.
In this regard, I note that there is a factual dispute as to whether the appellant was served with the application on 8 May 2020 or 13 May 2020. There is no evidence before the Commission to enable a determination of that issue. There is no affidavit of proof of service in the appeal, nor in the original file. However, I accept the appellant's submissions that even if the applicant is correct and they were served on 8 May 2020, the Decision with respect to the determination was issued before the expiration of a clear 7 days' notice. There was no Notice of Hearing and there was a denial of an opportunity to be heard on the application.
The applicant argues that even if there has been a denial of procedural fairness to the appellant, they would have been unsuccessful at resisting the application. The applicant set out its submissions with respect to the reasons that it claims an interest in the award as reproduced at [31]. Whilst the submission of the applicant as they relate to their interest in the award are persuasive, I agree with the appellant that the rules of procedural fairness dictate that they ought to have had an opportunity to contest the factual matters contained in the application through evidence and put forward their own case. For example the appellant refers to a long standing agreement between them and the applicant with respect to coverage of bus operations in NSW. While the existence of the agreement may or may not bear upon the outcome, it is fair that the appellant be given an opportunity to put its argument on this and any other basis upon which it may assert the application should be dismissed. Indeed, all the parties on the party card should be given that opportunity, including the STA.
Accordingly, I have determined that the appeal should be allowed and the matter remitted for redetermination.

[7]

Orders

I make the following orders: 1. The Decision of the Industrial Registrar be quashed. 2. The Industrial Registrar redetermine the application in accordance with this decision.

[8]

Amendments 11 March 2021 - Amendment to Catchwords on Cover Sheet 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: 11 March 2021

Rail, Tram & Bus Union NSW Branch v Transport Workers' Union of New South Wales

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