Rees v SafeWork NSW

Industrial Relations Commission (NSW)|2023-03-07

decision

The respondent in these proceedings seeks by way of an amended notice of motion filed 8 December 2022 (the "Motion") to set aside an application under s 229 of the Work Health & Safety Act 2011 (NSW) (the "WHS Act") for external review of a decision by the respondent (the "Application") relating to an Improvement Notice issued by an inspector of the respondent on 6 September 2022 (the "Notice").
For the reasons set out in this decision I have decided to uphold the Motion.

The Motion

The Motion provided two bases upon which the Application should be struck out, being: 1. There was no "reviewable decision" made by the respondent which is capable of external review by the Commission pursuant to s 229 of the WHS Act. 2. In the alternative, the applicant was not an " eligible person" to bring the application.

Hearing

The respondent, at the commencement of oral submissions at the hearing, withdrew ground 1 of the Summons and relied solely on the second ground that the applicant was not an "eligible person" for the purposes of s 229 of the WHS Act.
It was submitted that the applicant would need to fall into one of the four categories of persons listed in column 2 of Item 7 of ss 223(1) of the WHS Act.
As to the categories, the respondent submitted that the applicant was not a worker but conceded that he was probably a person conducting a business or undertaking ("PCBU") as listed in Item 7. However, the respondent submitted that even if the applicant was a worker or a PCBU he was not a person who is affected by the decision to issue the Notice.
The respondent submitted that the following principles are relevant to the determination of whether the applicant was a person whose interests were affected by the decision to issue the Notice: a. A person has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public. If no private right of his is interfered with, he has standing to sue only if he has a special interest in the subject matter of the action (Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 at 35-36 per Gibbs CJ); b. An interest does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not amount to standing (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530 per Gibbs J); c. If a person has interests which ought to be taken into account in the making of a decision, then ordinarily that person should be entitled to be heard (Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 260 per Davies J); d. In each case, the content of the terms "affect" and "interest" are to be seen in the light of the scope and purpose of the statute in issue (Alphapharm at 272 per Gummow J); e. In Transurban City Link Ltd v Allan (1999) 95 FCR 553, a Full Court of the Federal Court of Australia considered the issue of standing in the context of section 27 of the Administrative Appeals Tribunal Act 1975. A Full Court observed at [565]: "In summary, the question of standing to review an administrative decision is to be determined by reference to the interest which the applicant has in the decision which is under review. It is to be determined by reference to the nature and subject matter of the review and the relationship which the applicant individually or a representative body may have to it. An interest in the outcome of the review may give standing. But there will be no standing where the actual outcome of the review will not affect the applicant. There will be a question of degree involved in many cases."
In oral submissions the respondent confirmed in answer to a question posed, that the interest that was required to be affected was an interest that arose under the WHS Act and the applicant's interest that was affected by the Notice was not one that arose under the WHS Act.
The applicant's submission was that his interest was one affected by the Notice, in the manner set out in his email of 28 September 2022 as set out above.
In particular, the applicant in the hearing submitted that the effect of the Notice may lead to the loss of his accreditation as an assessor by reference to the CAN and it resulted in the applicant losing work from High Skills.

Further Written Submissions

At the conclusion of the hearing, leave was granted for the parties to file and serve further written submissions addressing the application of the decision of Commissioner Sloan in Emma Williams v Heath Services Union NSW and Anor [2019] NSWIRComm 1032 ("Williams").
Those matters raised by the applicant in response to Williams were, firstly, a repeat of the submission made concerning the possible loss of the applicant's certification as a result of the CAN.
Secondly, the applicant submitted that as he was operating and responsible for the Hoist he was an eligible person in reliance on paragraphs [29] and [30] of Williams.
As for the respondent, it made the following submissions concerning the application of Williams: 4. The respondent maintains that the applicant is not a person affected by the decision of SafeWork NSW to issue an Improvement Notice to High Skills Training Pty Ltd, the person with management and control of the plant. Applying the reasoning in Williams: a. Upon a proper construction of the Work Health & Safety Act 2011, the applicant is neither a worker or a PCBU affected by the decision, or a worker affected by the decision; b. The "legal effect" and operation of the decision to issue the Improvement Notice impacted High Skills only, not the applicant. The applicant was not compelled to take any action as a result of the decision. It was High Skills who was required to address the issue raised in the Notice as the person with management and control of the plant; c. The issue of Notice did not, and could not, result in any legal effect or impact upon the applicant. The fact that the applicant was present at High Skill's premises for the purposes of undertaking High Risk Work Licence assessments does not establish a requisite connection between the decision to issue the Improvement Notice to High Skills and the interests of the applicant, nor does any financial loss alleged to have flowed from the decision to issue the Notice (which is not substantiated on the evidence).

Consideration

Part 12 of the WHS Act provides a process for both internal and external reviews of various decisions made pursuant to the WHS Act. Section 213 sets out which decisions are reviewable and who can apply for such a review.
An application can be made for a review of a decision internally pursuant to s 224 or externally by the Industrial Relations Commission of New South Wales (the "Commission") pursuant to s 229(1)(a).
Sub-section 229(1)(b) of the WHS Act also permits an eligible person to apply to the Commission for a review of an internal review conducted under s 224.
Item 7 of ss 223 (1) lists the following persons as an eligible person to apply for a review of a decision to issue a s 191 notice: (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. (4) A health and safety representative who represents a worker whose interests are affected by the decision.
The key consideration in this Motion is whether the applicant is either a PCBU or a worker whose interests are affected by the decision to issue the Notice for the purposes of Item 7 (2) or (3) of s223(1) of the WHS Act.
In Williams, Commissioner Sloan had to determine whether the applicant for an external review was a worker who fell within Item 7 (3). The Commissioner, following review of the relevant authorities regarding similar provisions in other legislation, at paragraph [62] accepted the following submissions of the respondent as to the relevant principles: (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.
Furthermore, at paragraph [65] Commissioner Sloan made the following observation: 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.
The reasoning and conclusions of Commissioner Sloan in Williams with respect to the approach to consideration of whether an interest has been affected for the purposes of ss 223(1) of the WHS Act are sound and well reasoned.
The applicant claims two interests that are affected by the decision, being: 1. His potential loss of accreditation; and 2. The loss of work from High Skills.
As to the loss of accreditation, it is at best a theoretical rather than an actual effect. The content of the CAN upon which this submission is based does not provide a basis upon which the Commission could find that the applicant's accreditation is at risk due to the decision to issue the Notice.
As to the loss of work from High Skills, the evidence, does not support the contention made by the applicant. The invoices issued by the applicant, disclose that he had performed work for High Skills on 2 and 4 October 2022, which post-dates the issuance of the Notice.
Also, the applicant's submission in reliance on paragraphs [29] and [30] of Williams are misconceived. These paragraphs simply replicate s 223 and 229 of the WHS Act and make no reference to persons who are operating and responsible for plant or machinery.
For the reasons set out above, I find that the applicant is not an eligible person for the purposes of ss 223(1) of the WHS Act and does not have standing to make an application for external review pursuant to s 229 of the WHS Act and I make the following orders: 1. The Motion is upheld; and 2. The Application is dismissed.

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: 24 July 2023

Safety Act 2011(NSW)

Safety Regulation 2017(NSW)

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