Sydney Trains v Safework NSW

The statutory scheme

1. The Act provides, at Part 12, for internal and external review of a raft of 'reviewable decisions'. A decision by an inspector pursuant to s.72 is one of them. I am unaware of any decision of the Commission concerning external review of a decision initially made under s.72. In NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, Kite AJ addressed on external review a decision made pursuant to s.54 of the Act. His Honour's decision is of assistance in approaching the task of construction that the instant case raises, but as his Honour held, 'it may be that the type of decision under review imports different considerations as to the nature of the review and who may be parties to a review. I make it clear that I have not attempted to answer those questions in respect of all reviewable decisions.' (at [22])
2. Considerable debate emerged in the proceedings as to the proper construction to be given to both s.72 and s.229 of the Act and their interaction. It will be necessary to set out and address those statutory provisions.
3. Section 72 of the Act is in the following terms: 72 Obligation to train health and safety representatives (1) The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training in work health and safety that is: (a) approved by the regulator, and (b) a course that the health and safety representative is entitled under the regulations to attend, and (c) subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking. (2) The person conducting the business or undertaking must: (a) as soon as practicable within the period of 3 months after the request is made, allow the health and safety representative time off work to attend the course of training, and (b) pay the course fees and any other reasonable costs associated with the health and safety representative's attendance at the course of training. (3) If: (a) a health and safety representative represents a work group of the workers of more than one business or undertaking, and (b) the person conducting any of those businesses or undertakings has complied with this section in relation to the representative, each of the persons conducting those businesses or undertakings is to be taken to have complied with this section in relation to the representative. (4) Any time that a health and safety representative is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period. (5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1) (c) and (2), either party may ask the regulator to appoint an inspector to decide the matter. (6) The inspector may decide the matter in accordance with this section. (7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6). Maximum penalty: (a) in the case of an individual - $10,000, or (b) in the case of a body corporate - $50,000.
4. Section 229 of the Act can only be understood in the context of the provisions within Part 12 dealing with internal review. Divisions 2 and 3 of Part 12 are in the following terms: Division 2 Internal review 224 Application for internal review (1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within: (a) the prescribed time after the day on which the decision first came to the eligible person's notice, or (b) such longer period as the regulator allows. (2) The application must be made in the manner and form required by the regulator. (3) For the purposes of this section, the prescribed time is: (a) in the case of a decision to issue an improvement notice the period specified in the notice for compliance with the notice or 14 days, whichever is the lesser, and (b) in any other case, 14 days. 225 Internal reviewer (1) The regulator may appoint a person or body to review decisions on applications under this Division. (2) The person who made the decision cannot be an internal reviewer in relation to that decision. 226 Decision of internal reviewer (1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received. (2) The decision may be: (a) to confirm or vary the reviewable decision, or (b) to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate. (3) If the internal reviewer seeks further information from the applicant, the 14-day period ceases to run until the applicant provides the information to the internal reviewer. (4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information. (5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of that time. (6) If the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. 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. 228 Stays of reviewable decisions … 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.
5. It can fairly be said that neither s.72 nor Part 12 of the Act are shining examples of the parliamentary draughtsman's art. Sections 226 and 229, for example, provide in terms different powers on review to the internal reviewer and the external reviewer, although on proper examination the difference is illusory. No provisions are made for the conduct of external review proceedings, while specific provisions are made for the gathering of material on internal review. The nature of the external review proceedings is left to conjecture; that is, is such a review an administrative review or a de novo merits review? And if the Commission is indeed at large on external review, how is it that its powers are notionally limited to confirmation, revocation or variation of the internal review decision? Section 72 raises its own questions, which I address below.
6. I turn first to the identification of the nature of the review to be conducted by the Commission.
7. The first decision in the chain, that of an inspector, is necessarily an inquisitorial decision carried out pursuant to the inspector's powers. It is unsurprising that the Inspector's decision in this matter was given in the form of an inspection report. An inspector has no relevant power to proceed otherwise.
8. The internal reviewer has, unlike the inspector, an ability to seek further information from the applicant for review, but not from any other party: Act, s.226(3). The internal reviewer must give the applicant for internal review (but no other party) reasons for the decision on internal review.
9. The internal reviewer has a power to 'confirm or vary' the inspector's decision, and also has a power to set aside the inspector's decision and substitute another decision that the internal reviewer considers appropriate. On the face of the section, the internal reviewer is unconstrained in the scope of its decision, although it may properly be construed to mean another decision that could have been made within the section under which the reviewable decision was made.
10. The Commission then, on application, may conduct an external review of the internal review decision. It is to be inferred, in the absence of any statutory provision to the contrary, that the Commission in so doing has available to it all the powers conferred on it under ss.162 and 163 of the Industrial Relations Act 1996; ('the IR Act') so Kite AJ considered in NSW Rural Fire Service above, and I respectfully agree with his Honour.
11. The Commission may, having conducted an external review, "confirm, vary or revoke" the decision of the internal reviewer; Act, subs.229(4). It will immediately be seen that these are powers on their face different to those available to the internal reviewer, and specifically, that there appears to be no capacity in the Commission to substitute its own decision for that of the internal reviewer.
12. However, as Kite AJ inquired to some purpose in NSW Rural Fire Service, "The Commission is empowered to confirm, vary or revoke the decision concerned. I note the distinction between s 226(2) and s 229(4). The internal reviewer is empowered to set aside the decision (which equates to revocation) and substitute an appropriate decision. That last aspect is not expressly included in s 229(4). A question arises whether that is an important distinction. It may be that it is an indication that the Commission is not intended to substitute what it considers is the right, preferable or more appropriate decision. But that is inconsistent with the power to vary. It seems odd that the Commission could vary the decision and yet not substitute its conclusion as to what is preferable. What otherwise is the point of variation? (at [67])
13. Although I am troubled that it appears to be too readily brushing aside the fact that the parliament has chosen to use two quite different forms of words in closely-abutting sections of the Act, I can do no other than respectfully agree with his Honour, although his view is I think expressed in obiter and is not binding on me. In so doing I observe that there is no constraint as to the degree of variation that may be effected; the Commission could within power 'vary' the internal reviewer's decision by altering it to such a degree that it said something entirely different, in effect substituting a new decision. For reasons that I will come to, that is in my view precisely what the Commission will be obliged to do in certain circumstances in order to carry out its function.
14. As to the overall nature of the review to be conducted by the Commission, Kite AJ went on to say: 'Looked at in this context it seems to me that the legislature intends that the commission will undertake a merits review. The fact that written reasons are required to be provided to the applicant following the internal review is not enough by itself to suggest that the review by the Commission is to be directed to simply the identification and correction of error" (at [70])
15. His Honour went on to hold that the internal review is an administrative merits review of the inspector's decision based on the material gathered by the inspector, and that the external review by the Commission "is an administrative merits review to be undertaken following the normal arbitral processes of the Commission. While the reasons for decision on the internal review would be relevant and accorded due weight the Commission is intended to make a decision based on all the material before it at the date of the decision." (at [72])
16. While I agree that the normal arbitral processes of the Commission are to be followed, I am obliged respectfully to differ with his Honour on one aspect of that analysis.
17. His Honour referred to the Commission's process as being a 'de novo' hearing, and both parties and the intervenor supported that view. It seems to me that must be so, in the absence of anything in the Act to suggest that the Commission is carrying out anything other than a full consideration of the matter. The fact that, for example, the Commission is able to receive evidence from any party or intervenor about the merits of the initial decision, a process not available to the internal reviewer, and is able to hear (and indeed compel) witness evidence, including evidence adduced by cross-examination as was the case here, together with the fact that the Act provides no criteria of any kind against which the Commission is to judge the internal review decision, points to the Commission's process being a de novo decisionmaking process. It is certainly not any one of the other categories of appeal referred to by Glass J in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-8.
18. That conclusion appears to sit awkwardly with the prescription in subs.229(4) that the Commission may 'confirm, vary or revoke' the internal review decision. That is because that limitation appears to stand against a genuine de novo hearing, in which the decisionmaker is entirely at large as to the decision, given that the decisionmaker is hearing the matter afresh ab initio. But I am persuaded that it must be so, given the processes of the Commission and the absence of any statutory limitation on those processes appearing in the Act.
19. If, then, the external review is a de novo hearing, I cannot agree with Kite AJ that 'the reasons for the decision below would be relevant and accorded due weight.'
20. In a de novo hearing, all issues must be retried and the party succeeding below enjoys no advantage: Drake v Workcover NSW (1999) 90 IR 432 at 440; Turnbull v NSW Medical Board at 298; Sweeney v Fitzhardinge (1906) 4 CLR 716. The reasons for the internal reviewer's decision would in a de novo hearing be given no weight; they would in no wise be a relevant consideration. The matter is dealt with afresh.
21. In the course of hearing final submissions I posed the question to counsel as to whether it would make any difference if the decision of the internal reviewer were bad for being beyond power. On reflection it is apparent that it would matter not. Despite the fact that it is the internal decision which is being reviewed, it is not a matter of assessing the correctness or otherwise of that decision of itself. Once an external review is initiated, the Commission must provide a fresh decision, regardless of the outcome of the review.
22. Consistent with the conduct of a de novo hearing, I proceed on the basis that the Commission is to come to the decision that it thinks correct and preferable in relation to the initial decision made by the inspector. That will in practical terms mean that the Commission decides the issue between the parties agitated under, in this case, s.72 of the Act. I now turn to that section.

Section 72

1. The applicant in these proceedings is an employer in a workplace and is therefore a person conducting a business or undertaking within the meaning of the Act. Under s.72, an employer is obliged to allow a health and safety representative ('HSR') to attend "a course of training in work health and safety" that is, pursuant to subs. 72(1)(c). "subject to subsection (5), chosen by the health and safety representative, in consultation with the person conducting the business or undertaking."
2. As I note above but repeat here for ease of reference, s.72 then continues: (5) If agreement cannot be reached between the person conducting the business or undertaking and the health and safety representative within the time required by subsection (2) as to the matters set out in subsections (1) (c) and (2), either party may ask the regulator to appoint an inspector to decide the matter. (6) The inspector may decide the matter in accordance with this section. (7) A person conducting a business or undertaking must allow a health and safety representative to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (6).
3. In this case four employees of the applicant who were HSRs, Messrs Robert Beattie, Jerome Pirozzi, Michael Richmond and Stephen Hillard, advised the applicant that they wished to attend a particular training course, the HOSTA course. It is a course approved by the regulator. The applicant declined to arrange for their attendance on the course.
4. I return to the proper construction of the phrase "chosen by the health and safety representative, in consultation with the person conducting the business" appearing in s.72(1)( c) below.
5. As the applicant declined to arrange for the four HSRs to attend the particular course they identified, the HSRs asked the regulator to appoint an inspector to "decide the matter."
6. The inspector issued an inspection report in which he stated that he had decided the matter. That report states 'I decided choice of HSR training course and timing/payment for course.' The course is not identified in the decision itself but it was in fact the course that the four employees selected.
7. The applicant sought an internal review of that decision. The internal review decision is set out at paragraph 4 above. It is a reviewable decision within the meaning of s.223 of the Act, which means that an application may be made for external review of it. The applicant applied for such a review.
8. The Commission conducted that review by way of these proceedings, that is, by an arbitration involving evidence, some cross-examination of witnesses and argument as to the proper construction of the Act. In so doing the Commission was, as I say above, conducting a de novo hearing.
9. The Commission therefore has to furnish the four HSRs and the applicant with a decision about the training the HSRs are to undertake.

Application of s.72

1. So the applicant had an obligation under s.72 of the Act to allow the HSRs to attend a course "chosen by the health and safety representative, in consultation with the person conducting the business": subs.72(1)( c)
2. It was submitted by the intervenor, with the support of the respondent, that those words mean that the HSRs had an absolute right to nominate a course, and that, provided some form of consultation took place, the applicant could do no more than agree to that specific course or disagree with it. The applicant, it was said, had no capacity to offer any alternative course. It was further said that the inspector, in 'deciding' the matter pursuant to subs. 72(5) and 72(6), could not decide the matter by choosing a course nominated by the employer, but was confined to choosing (or, presumably, declining to choose) the course nominated by the HSR.
3. That is simply wrong, in my view.
4. It is unnecessary here to set out once again the fundamental principles of statutory construction as they have been 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. I have applied those principles in coming to the views I have concerning the construction issue in this case. It may properly be emphasised that a court when construing a statutory provision should strive to give meaning to every word in the provision and should avoid a construction which leaves any provision as superfluous, void or insignificant: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
5. On any proper construction of s.72(1)( c), the HSR's have this statutory right: to choose a course in consultation with the employer. That right cannot be pulled apart into component parts. It is a right as a whole. On the plain meaning of the words of the subsection, the choice cannot be formed independent of consultation with the employer, because that would leave significant words in the sub-section with no work to do. The consequence is that no party has a right to choose unilaterally any one course or another.
6. Critically, there is not, as the intervenor sought to suggest there was, a primacy given to the course the HSR selected. Subs.72(1)( c) cannot be read to have that effect.
7. Each part of an Act is to be construed having regard to the whole, and subs. 72(1)(c) cannot be understood without reference to subs.72(5). That subsection provides that if agreement cannot be reached between the HSR and the employer about the matters in subs.72(1)(c) and, discretely, subs. 72(2), the matter is to be 'decided' by an inspector. Subsection 72(2) deals with timing, and with course fees and reasonable costs. Subsection 72(1)(c) deals with the choice of course.
8. To carry out his statutory function to 'decide' the matter which is the subject of disagreement between the HSR and the employer under subs.72(1)(c), the inspector must decide the matter which is the subject of lack of agreement between the HSR and the employer under subs. 72(1)(c). That sub-section, as I say, does not address timing or fees, but the choice of course. In circumstances where the HSR and the employer each select a different course, and it is about that selection of course that there is a lack of agreement, the inspector must decide between the courses each party has proposed, about the selection of which they disagree.
9. The intervenor submitted that where an HSR has 'chosen' a course an inspector cannot substitute the employer's preferred course for the HSR's choice, or even engage in a weighing exercise between the two. That submission is, with respect, wrong, because, first, it omits words in subs.72(1)(c) which have work to do, and second, because it ignores the words of s.72(5), read together with subs.72(1)(c).
10. It is not a matter of an employer having a 'veto' over an HSR's choice of a training course, to use a term advanced by the intervenor. There is certainly no veto which can be wielded by an employer, but that submission misconceives what is to occur under s.72. Neither party to the consultation has a unilateral right to enforce their preferred training course, nor to bar the other party's preference. If the parties agree, the training goes ahead as agreed. If they disagree, that disagreement is resolved at first instance by the inspector deciding the matter. Once it is understood that the disagreement comprehended by subs.72(1)(c) can be only about the choice of course, then it is apparent that the disagreement can be resolved by the inspector only by choosing between the alternative courses proposed.
11. In this matter the inspector decided the matter by deciding that the HSR's should go on the HOSTA course. Leaving aside, I emphasise, any question about the particular course he identified in that decision, he necessarily carried out his statutory function wrongly, in that he did not decide the matter 'in accordance with this section', as subs. 72(6) required him to do. That is because he proceeded to decide the matter on, as his decision reflects, the basis that the HSR had an overarching right to decide which course to attend, provided the HSR 'took into account the employer's views about the suitability of the course and suggested alternatives'. That is not what s.72 provides.
12. The inspector cannot be blamed for taking that view, because his employer the respondent, in a document entitled Worker Representation and Participation Guide published in March 2016, had, presumably without the benefit of advice, erroneously stated that was the case. It is regrettable that this important document misstates the effect of s.72.
13. The decision of the internal reviewer was also bad, in part because it purports to 'direct' the applicant to do certain things, which is not a power conferred on either the inspector or the internal reviewer under the Act, but more importantly because it states, and proceeds on the basis, that "[s]ection 72(1) provides clear direction that the training course is to be chosen by the HSR." No reference is made to the statutory provision for consultation. By leaving out critical parts of the sub-section in making that assertion, the internal reviewer fell into error and misdirected himself. The internal review decision, without considering at all its actual choice of courses, is wrongly reached and wrongly expressed.

Proper approach to resolution of the matter

1. If the external review is a de novo hearing, then the internal review decision is simply to be replaced with whatever the Commission finds to be the correct and preferable decision. However, the Act speaks only of confirming, revoking or varying the decision. To revoke the internal review decision on the basis that it is bad at law would leave the original decision by the inspector to stand. The Inspector's decision is also bad at law, for the reasons given above.
2. The proper approach must be that the Commission use the statutory power to vary the decision on external review. Whatever the terms of that variation, to 'vary' will have the effect that the Inspector's original decision does not of itself stand, which it ought not, having been made inconsistently with the Act. There is some artifice in varying the internal review decision by replacing it, which will be the effect of the variation no matter what the terms of the external review decision, but the framing of the legislation leaves no other means to replace a decision which is wrong with the correct and preferable decision.
3. It is then necessary to determine the correct and preferable decision in the matter.
4. What is to be decided on external review is the particular disagreement that exists between the four HSR's on the one hand, and Sydney Trains on the other, about this particular training course.
5. The intervenor correctly observes that the external review decision cannot take the form of a general declaration. The form of relief sought by the applicant in terms in its application could not be provided upon external review. The intervenor also correctly submits that the decision on external review is not a matter of upholding or dismissing the applicant's application.
6. The Act provides that what is to be done on external review is to confirm, vary - as that word is properly understood in this context - or revoke the decision on internal review. That decision is one which goes only to the course of training to be attended by the four named HSR's who are in disagreement with Sydney Trains about attendance on a particular training course.
7. The Commission has, in carrying out its external review, to resolve the existing disagreement between the applicant and four of its HSR's about their attendance on a particular training course.
8. There is no veto by either an employer or an HSR on a course of training that is approved by the regulator, and there is no overarching or primary right to choose residing in the HSR. In each case going to the question of the provision and undertaking of training, it is a matter of determining what is the most appropriate course of training to be undertaken in any given situation.

Correct and preferable decision in the instant case

1. On the evidence the four named HSR's advanced a course, the HOSTA course, as their chosen preferred course. Sydney Trains did not advance in terms a preferred course as an alternative to the HOSTA course, but rather, told the HSR's that their preferred course, the HOSTA course, was not approved and that they could instead choose to attend a course provided by one of the regulator-approved providers on Sydney Trains' panel.
2. The basis for this approach by the applicant was, on the evidence, that a panel had been created and appointments made to it in order to assist in fulfilling the applicant's statutory obligations under subs.176(1) and 176(2) of the Public Works and Procurement Act 1912 ('the PWP Act'). The latter subsection imposes an obligation on a Government agency, which the applicant is, to ensure that it obtains value for money in relation to the procurement of goods and services. That is described in the NSW Procurement Policy Framework for NSW Government Agencies of July 2015 as an "overarching requirement for procurement"; unsurprisingly, as the funds involved are public funds, that is to say, the long-suffering taxpayers' money.
3. It is clear that the creation of such a panel does not contravene or delimit the relevant provisions of the Act, including specifically s.72, while on its face permitting a capacity better to achieve the overarching requirement for procurement. It is both reasonable and understandable that a government agency with the stewardship of public monies might seek to establish, from the number of training providers approved by the regulator, a panel of providers that best permit it to conform with its responsibilities in relation to those public funds, both under the PWP Act and at large.
4. That does not mean that in every case training provided by a provider on the panel is to be preferred. It is a matter of determining what is the most appropriate course of training for the purposes of the Act to be undertaken in any given situation.
5. HOSTA is a provider approved by the regulator. It is not a provider on the applicant's panel of providers. That is, subject to the applicant's obligations under the PWP Act and the procurement framework, and its obligations under the Act, a matter entirely, subject to its various statutory obligations, for the applicant.
6. Here, the HSR's have each expressed a specific desire to attend the HOSTA course. On the evidence, employees of the applicant have from time to time attended HOSTA courses, even though HOSTA is not on the panel of providers. It was submitted by the applicant that this desire to attend the HOSTA course arose from a misconceived sense that the HSRs were entitled to attend whatever course they chose. It certainly is not the case that they had any such entitlement, but I am not persuaded that the initial choice of the HOSTA course came wholly from that misconceived understanding. As members of a trade union, I can accept that the four HSR's desire to undertake the HOSTA training sprang from a preference to carry out the training in a union-based environment.
7. The matter of training, in respect of these four HSRs, has as I understand the evidence dragged on since 2015. In my view, for the reasons expressed above, where an HSR and the instant applicant disagree as to a course, and the course proposed by the applicant is provided by a provider selected with regard to the applicant's obligations under the PWP Act and the procurement framework, the better choice would be that the training provided by a provider selected by the applicant be undertaken. However, this matter stands to be determined on all of its facts and circumstances, including its particular history.
8. In that respect I have regard to the fact that there has not before been a clear statement of the meaning of s.72, and that parties might well be excused their having proceeded on a mistaken basis, given the lack of clarity in its language and the mistaken statement in the document published by the regulator. Parties have generated expectations and adopted positions which they might not have had the law been clearly understood.
9. Further, there is this. The HSR's nominated a particular provider for a particular course. The applicant did not advance a particular course or provider, but in effect proposed that the HSR's choose again. The better approach, where the applicant did not agree to the course proposed by the HSRs, would have been for the applicant to nominate a provider and a particular course. That would have allowed the inspector, and if necessary the internal reviewer, to undertake a proper exercise in decisionmaking between two concrete alternatives comprising the disagreement. Ultimately it would have enabled the Commission, on external review, to carry out such an exercise. As it was, the applicant having identified no particular provider or training, that course was not open to the Commission.
10. Having regard to the proper effect of s.72 of the Act, and to the matters I set out immediately above, in my view this matter, the unusual facts of which means that it stands alone, the disagreement between the applicant and the HSRs should be decided by Robert Beattie, Jerome Pirozzi, Michael Richmond and Stephen Hillard undertaking the training provided by HOSTA. The applicant's obligations under subs.72(2) now come into effect. PETER NEWALL 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: 03 March 2017