Transport Workers' Union of Australia, New South Wales v SafeWork NSW

The Appeal

1. The Application for Leave to Appeal and Appeal identifies the following questions raised by the appeal: "1. The proper construction of ss 50-52 of the Work Health and Safety Act 2011 (NSW) (WHS Act) and, in particular, whether work groups can be determined that include workers from workplaces: (a) not included in requests by a worker or workers for the facilitation of the conduct of the election for one or more health and safety representatives (HSR) to represent workers and determination of work groups under ss 50-51 of the WHS Act; (b) who the person conducting a business or undertaking (PCBU) has not negotiated with in relation to the determination of work groups of workers; (c) whose views as to work groups or representation by HSR's have not been obtained. 2. Whether the Commissioner took into account the mandatory considerations under s 52(6) of the WHS Act, being the matters set out in regulations 16-17 of the Work Health and Safety Regulation 2017 (NSW) (Regulations). 3. Whether the Commissioner erred in construing the WHS Act, and therefore took into account an irrelevant consideration, in determining that a trade union and PCBU could invoke the issues resolution provisions of the WHS Act and seek the Commission's assistance to resolve issues relating to work groups. 4. Whether the Commissioner gave adequate reasons for his decision." (Emphasis in original)
2. The grounds of appeal relied upon by the appellants were in the following terms: "1 The Commissioner erred in his construction of ss 50-52 of the WHS Act in determining work groups that: 1.1 included workers not included in the geographically confined groups of workers the individual appellants requested work groups be formed for; and/or 1.2 included workers who Deliveroo had not negotiated with; and/or 1.3 whose views had not been obtained. Particulars (a) The individual appellants requested work groups be formed in respect to particular workplaces constituted by the following geographical areas: City, Inner City and Pyrmont; Five Dock, Haberfield and Balmain; Glebe and Inner West; Coogee and Maroubra; Sydney Lower North and Chatswood. (b) These groups were premised on existing clusters and concentrations of workers, so as to ensure that workers in these work groups had ready access to an HSR. (c) The individual appellants would have been members of these proposed work groups and represented other workers who would be members of such work groups. (d) No negotiations between Deliveroo and workers (or their representatives) in geographical locations beyond the geographical boundaries of these proposed work groups ever occurred. (e) The Commissioner determined work groups for workplaces comprising geographical areas: (1) that were not the subject of any request or proposal by the individual appellants or any other worker; (2) which included workers whom Deliveroo had not negotiated with; (3) without taking into account the views of workers performing work in workplaces in such other areas. (f) Properly construed, ss 50-52 of the WHS Act determine that where requests are made by a worker or workers under s 50 of the WHS Act for the formation of work groups to elect HSR's, it is not open to a PCBU, an inspector exercising power under s 54(3) or an internal reviewer of an inspector's decision under s 54(3) or the Commission on an external review, to determine work groups that extend beyond the scope of the requests or that include workers whom the PCBU has not negotiated with. (g) The Commissioner's determination of work groups for workplaces in the following areas: the 'Far East', the 'Middle East', Bondi Junction, Alexandria, Marrickville, Eastwood, Macquarie Park, Ryde, Hornsby, Pennant Hills, Manly, Dee Why, Narrabeen, [Brighton-Le-Sands], Hurstville, Bankstown, Revesby, Clemton Park, [Caringbah], Campbelltown, Narellan, Miranda, Menai, Baulkham Hills, Blacktown, Fairfield, Liverpool, Parramatta, Penrith, Rhodes and Mount Druitt, was beyond power. 2. The Commissioner erred in taking into account an irrelevant consideration, namely, that work groups should be determined on the basis that all workers in a PCBU's business or undertaking (or within a particular part of a PCBU's business or undertaking) should be part of a work group, in circumstances where: 2.1 there had been no request of the PCBU by workers in these workplaces for the formation of work groups; 2.2 the PCBU had not negotiated with workers in these workplaces for the formation of work groups; 2.3 there was no evidence before the Commission of the views of those workers. 3. The Commissioner erred in his construction of the WHS Act and/or took into account an irrelevant consideration in determining work groups, by concluding that if issues arose as a result of his decision, the Transport Workers' Union and/or Deliveroo had the capacity to invoke the issues resolution provisions under the WHS Act and seek the Commission's assistance to resolve those issues. Particulars (a) The issues resolution procedure under ss 80-82 of the WHS Act extends only to 'work health and safety issues' at a workplace and does not pertain to the composition of work groups or the representation of work groups by HSR's. (b) The issues resolution procedure under ss 80-82 of the WHS Act does not permit a party to an issue to apply to the Commission for assistance in resolving any health and safety issue. (c) The issues resolution procedure under ss 80-82 of the WHS Act does not permit a trade union to be a party to an issue, unless the worker or workers affected by the issue are not in a work group and have appointed the trade union as their representative for the purposes of s 80(1)(d) of the WHS Act. 4. The Commissioner erred in determining work groups by failing to take into account mandatory relevant matters prescribed by s 54(6) of the WHS Act, being those set out in regulations 16-17 of the Work Health and Safety Regulation 2017 (NSW) (Regulations). Particulars (a) The Commissioner failed (to) mention, let alone, consider any of the mandatory matters under regulations 16-17. (b) The Commissioner failed to engage in an active intellectual process in which each of the mandatory considerations under regulations 16-17 received his genuine consideration. 5. The Commissioner erred by failing to give adequate reasons for his decision. Particulars (a) The Commissioner failed to enter into the issues raised by the appellants and engage appropriately (or at all) with those issues. (b) In particular, the Commissioner failed to enter into the following issues raised by the appellants: (1) the work groups proposed by Deliveroo (which the Commissioner determined) included workers not the subject of the individual appellants' proposed work groups and whose views had not been obtained; (2) the zone structure proposed by the appellants permitted workers to be represented by HSR's familiar with particular risks to health and safety applying in those zones; (3) the zone structure proposed by the appellants related to smaller geographical areas where work was more concentrated that allowed for more effective representation of workers in those areas; (4) the work group structure proposed by Deliveroo (which was determined by the Commissioner) did not promote the need for HSR's to be readily accessible to members of their work group."
3. We consider each of the grounds of appeal in detail below.

Relevant legislation

1. The main object of the WHS Act is to provide a "balanced and nationally consistent framework to secure the health and safety of workers and workplaces": s 3. Section 3 directs that this object is to be achieved by the matters set out in subs 3(1), including, relevantly: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and (b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety, and (c) encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting persons conducting businesses or undertakings and workers to achieve a healthier and safer working environment, and … (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and …
2. The WHS Act is beneficial legislation designed to ensure the health and safety of workers and other persons who perform work or are present at businesses or undertakings.
3. Part 2 of the WHS Act establishes work health and safety duties of persons, including a "person conducting a business or undertaking" (PCBU). A PCBU, such as Deliveroo, has a duty to ensure, so far as reasonably practicable, the health and safety of workers engaged, or caused to be engaged, and workers whose activities in carrying out work are influenced or directed by them, whilst the workers are at work in the business or undertaking: s 19. That primary duty is not transferable to another person: s 14. Workers also have obligations under s 28 of the WHS Act, to take reasonable care for their own health and safety, and that of other workers, and to comply with reasonable instructions and policy and procedures relating to health or safety at the workplace.
4. Part 5 of the WHS Act is entitled 'Consultation, Representation and Participation'. Pursuant to s 46 of the WHS Act, Deliveroo has a duty to engage with the riders and drivers who perform work in its food delivery business (who are themselves duty holders) about health and safety matters. Furthermore, under ss 47, 48 and 49 of the WHS Act, Deliveroo (as a PCBU) is required to consult, so far as reasonably practicable and in accordance with the WHS Act and Regulation, with workers who carry out work in the business including in accordance with procedures agreed by the parties or established by the Regulation.
5. Relevantly, subs 48(2) stipulates that where consultation is required and workers are represented by a HSR, consultation must involve that representative. Section 49 sets out various circumstances where consultation is required.
6. Division 3 of Pt 5 of the WHS Act concerns HSRs. Section 50 provides that a worker who carries out work for a PCBU may ask the PCBU to facilitate the conduct of an election for one or more HSRs to represent workers who carry out work for the PCBU. Section 51 provides: 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.
7. Subsection 8(1) defines a "workplace" to be a place where work is carried out for a business or undertaking and to include any place where a worker goes or is likely to be while at work.
8. Section 52 concerns negotiations for agreement for a work group or work groups and is central to this matter. It provides: 52 Negotiations for agreement for work group (1) A work group is to be determined by negotiation and agreement between - (a) the person conducting the business or undertaking, and (b) the workers who will form the work group or their representatives. (2) The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers within 14 days after a request is made under section 50. (3) The purpose of the negotiations is to determine - (a) the number and composition of work groups to be represented by health and safety representatives, and (b) the number of health and safety representatives and deputy health and safety representatives (if any) to be elected, and (c) the workplace or workplaces to which the work groups will apply, and (d) the businesses or undertakings to which the work groups will apply. (4) The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement. (5) The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker's representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations. (6) The regulations may prescribe the matters that must be taken into account in negotiations for and determination of work groups and variations of agreements concerning work groups. (emphasis added)
9. Clauses 16 and 17 of the Regulation stipulate matters to be taken into account for the purposes of subs 52(6) in relation to the determination of work groups. They provide: 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. 17 Matters to be taken into account in negotiations For the purposes of sections 52(6) and 56(4) of the Act, negotiations for and determination of work groups and variation of agreements concerning work groups must take into account all relevant matters, including the following - (a) the number of workers, (b) the views of workers in relation to the determination and variation of work groups, (c) the nature of each type of work carried out by the workers, (d) the number and grouping of workers who carry out the same or similar types of work, (e) the areas or places where each type of work is carried out, (f) the extent to which any worker must move from place to place while at work, (g) the diversity of workers and their work, (h) the nature of any hazards at the workplace or workplaces, (i) the nature of any risks to health and safety at the workplace or workplaces, (j) the nature of the engagement of each worker, for example as an employee or as a contractor, (k) the pattern of work carried out by workers, for example whether the work is full-time, part-time, casual or short-term, (l) the times at which work is carried out, (m) any arrangements at the workplace or workplaces relating to overtime or shift work.
10. The appellants argued that the language of subs 52(6) is such that the principles described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 apply, such that it is mandatory for the decision-maker to take into account those matters prescribed by the Regulation, requiring that the decision-maker engage in an active intellectual process in which each relevant matter receives his or her genuine consideration.
11. When negotiations for work groups fail, s 54 applies. Subsection 54(1) confers a right on a person who is or would be party to the negotiations to ask the regulator to appoint an inspector "for the purposes of this section" to decide the matters set out in subs 52(3). A decision of an inspector under subs 54(2) is taken to be an agreement under s 52: subs 54(4).
12. Subdivision 4 of Division 3 of Pt 5 of the WHS Act provides for the election of HSRs, while Subdivision 5 sets out the powers and functions of the HSRs.
13. Subsection 69(1) provides that a HSR may exercise powers and perform functions only in relation to matters that affect or may affect workers in their work group. A HSR has a limited capacity to exercise powers in relation to workers outside of their work group in circumstances of serious risks to health or safety emanating from an immediate or imminent exposure to a hazard that affects, or may affect, a member of the work group: subs 69(2).
14. Decisions by inspectors exercising powers under subs 54(2) are reviewable pursuant to Item 1 of subs 223(1) of the WHS Act. Internal reviews of decisions are governed by ss 224-227 of the WHS Act. An internal reviewer may make a decision confirming or varying an inspector's decision, or may set aside and substitute another decision which the internal reviewer considers appropriate: subs 226(2).
15. An application for an "external review" of a decision made on an internal review to the Commission is available under subs 229(1)(b). The Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review and may, on an external review, "confirm, vary or revoke the decision concerned": subss 229(3) and (4).
16. Division 5 of Pt 5 of the WHS Act provides for "Issue resolution". HSRs are parties to the "issue resolution" process mandated by ss 80-82 of the WHS Act in relation to their work group: subs 80(1)(b). Sections 81 and 82 relevantly provide: 81 Resolution of health and safety issues (1) This section applies if a matter about work health and safety arises at a workplace or from the conduct of a business or undertaking and the matter is not resolved after discussion between the parties to the issue. (2) The parties must make reasonable efforts to achieve a timely, final and effective resolution of the issue in accordance with the relevant agreed procedure, or if there is no agreed procedure, the default procedure prescribed in the regulations. … 82 Referral of issue to regulator for resolution by inspector (1) This section applies if an issue has not been resolved after reasonable efforts have been made to achieve an effective resolution of the issue. (2) A party to the issue may ask the regulator to appoint an inspector to attend the workplace to assist in resolving the issue. (3) A request to the regulator under this section does not prevent - (a) a worker from exercising the right under Division 6 of this Part to cease work, or (b) a health and safety representative from issuing a provisional improvement notice or a direction under Division 6 of this Part to cease work. (4) On attending a workplace under this section, an inspector may exercise any of the inspector's compliance powers under this Act in relation to the workplace.

Leave to appeal

1. Section 188 of the Industrial Relations Act 1996 (IR Act) provides that an appeal to a Full Bench of the Commission may be made only with leave, and that such leave may only be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted.
2. The principles in deciding whether to grant leave are well settled and were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11]. These are: 1. an appeal under the IR Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error; 2. leave will not be granted lightly or automatically, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice; and 3. where an appeal primarily challenges findings of fact, leave will rarely be granted.
3. We have decided to grant leave to appeal as the matter raises substantial issues of law in respect of the correct construction of ss 50, 51, 52 and 54 of the WHS Act. These matters have wider implication for the jurisprudence of the Commission in relation to the exercise of its external review functions under s 229 of the WHS Act. These matters are also of importance for PCBUs, workers and SafeWork in relation to the proper interpretation and application of Pt 5 Div 3 of the WHS Act.
4. Deliveroo conceded that the appeal raises matters of broader consequence, particularly with respect to the Full Bench's interpretation of ss 50-54. However, Deliveroo argued that the Full Bench should consider the appellants' failure to seek a stay of the Decision as relevant, noting the costs associated with the implementation of the work groups and the confusion that a successful appeal may have for those workers. Whilst we consider this was a legitimate and relevant matter to raise in the context of granting leave, we have decided the balance lies in favour of granting leave to appeal, given the public interest in having the Full Bench interpret the relevant provisions of the WHS Act.

Consideration

1. Prior to considering the point of appeal, it is convenient to start with an analysis of the nature of the Commission's task and power when determining an external review pursuant to subs 229(1)(b). This is an important consideration because Deliveroo advanced a fundamentally different perspective on the task and powers of the Commission in the external review, to that of the TWU and WorkSafe. Deliveroo's arguments in the appeal significantly centered on the premise that the Commission is not limited in its powers in an external review and is able to determine what is the correct or preferable decision. This was described in Deliveroo's submissions as a "broad merits review power which is unconstrained".
2. In its written submissions, Deliveroo argued under the heading, "The role, scope and powers of external review by the Commission" at pars 50-52: "Section 229(1) of the WHS Act provides that an eligible person may apply to the Industrial Relations Commission for an external review within a prescribed time. Section 229(4) of the WHS Act sets out the powers of the external reviewer, which, relevantly include a power to 'review, confirm, vary or revoke the decision concerned.' This too is a broad merits review power which is unconstrained. …"
3. After quoting Kite AJ in NSW Fire Rural Service at [67]-[71], the submission continued (at pars 53-56): "The Appellants contend (at AS [47]) that the Commission does not have the power to determine a different work group or to remake it. However, there is no substance in these contentions. Nothing in s.229 of the WHS Act so limits the power of the Commission. The Commission is empowered to determine what it considers to be the correct or preferable decision. The Appellants also contend (at AS [52]) that the Commission is required to take into account the mandatory considerations in regs 16 and 17 of the WHS Regs. Again, nothing in s.229 of the WHS Act directs or dictates that the Commission must have regard to the mandatory factors set out in WHS Regs. The factors in regs 16 and 17 of the WHS Regs are prescribed for the relevant purposes of s.52(6) of the WHS Act. Those are factors that are relevant to the negotiation for and determination of work groups by the PCBU and relevant workers. The Commission is not engaged in a process of negotiation. Nor is it engaged in a commission of inquiry where it has to examine the views of all affected workers. This is not a sensible approach to the construction of the provisions. It cannot sensibly be said that the Commission is undertaking any role under s.52 of the WHS Act. Rather, the Commission's role is to review, confirm, vary or revoke the decision concerned. That is not to say that the Commission cannot take into account the matters put before it by the parties. Of course, it would do so. The Commission's power is to look at the matters afresh in light of the materials put before it by the parties and to determine whether the internal decision should be confirmed, varied or revoked, and to make the correct and preferable decision as a matter in its discretion. However, there is no mandatory criteria imposed on the Commission as to the factors in the WHS Regs. These observations inform, and to an extent answer, the grounds of appeal proposed by the Appellants, which are dealt with below."
4. We are unable to agree with Deliveroo's characterisation of the nature of the Commission's power in conducting the external review. There was no controversy that reviews by the Commission under s 229 are in the nature of merits reviews which are undertaken with a view to arriving at the correct or preferable decision: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 (Staff J) at [50]; NSW Rural Fire Service at [67]-[72]. The Commission conducts a hearing de novo and engages in a full consideration of the matter, with all matters being considered afresh. Accordingly, there is no need for an applicant for external review to establish error in the decision-making process: Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009 at [23], [26] and [28] (Newall C).
5. Although the Commission determines the matter afresh, it is required to do so as though it were in the shoes of the decision-maker, in this case the internal reviewer, Assistant State Inspector Issa. In relation to administrative reviews of this type, Bowen CJ and Deane J stated in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (at p 589): "... The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision, under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists... that regard must be had to the relevant considerations, and that matters 'absolutely apart from the matters which by law ought to be taken into consideration' must be ignored ..."
6. Commissioner Murphy was required to stand in the shoes of the decision-maker when making his determination. He was required to consider those matters the decision-maker was required to consider and was similarly constrained in his decision powers. The Commissioner was empowered by subs 229(4) to confirm, vary or revoke the decision of Assistant State Inspector Issa. The implications of this determination in the context of the appeal Grounds 1, 2 and 4 is considered further below.

Ground 1 and 2

1. The parties addressed Ground 1 and 2 of the appeal concurrently in their submissions. Ground 1 raises the question of whether work groups, as implemented through the internal or external review processes, can include workers who did not negotiate with the PCBU, or who were not consulted about the work groups. Ground 2 of the appeal raises the question of whether Commissioner Murphy took into account an irrelevant consideration, namely that all the workers in Deliveroo's business should be included in a work group. The resolution of these questions requires a construction of ss 50-54 of the WHS Act.
2. In NSW Rural Fire Service, Kite AJ observed at ([47]-[50]): "The legislation under consideration raises some perplexing questions. In summary, a worker (including a volunteer) may ask the 'person conducting a business or undertaking' (PCBU) to facilitate the conduct of an election for one or more health and safety representatives (HSRs) (s 50 of the Act). The PCBU must (s 51) then facilitate the determination of one or more workgroups by negotiation (s 52) with the workers who will form the work group or their representatives. I note that representative is a defined term and includes registered industrial organisations of employees; see s 4 of the Act - definitions of 'representative' and 'union'. There is an immediate conundrum in that the negotiations are to take place with the members of a group (or their representatives) about the establishment of that group. In a small organisation that may present few difficulties. In an organisation of more than 70,000 workers, such as the [Rural Fire Service] it is clearly a different and more complex question. With whom is the PCBU meant to negotiate? The workers who must be party to the negotiations are those who will form the group the identification of which is the subject of the negotiations. The circularity is obvious. Fortunately I do not need to resolve that question in this case. I pause here to note I accept Mr Hodgkinson's submission that Part 5 of the Act has a collective focus. It is about the representation of groups of workers. All workers in the group have an equivalent interest. That is not to deny that, notwithstanding this collective focus, individual workers are given specific standing to initiate various actions. Making the request under s 50 is an example. If the negotiations fail, itself a question of fact simplified in this case by the passing of the prescribed time, a person who is or would be a party to the negotiations may apply to the regulator (in this case SafeWork) to appoint an inspector. That raises the question of who should be party to the negotiations and raises the circularity question once more. Again, fortunately, the issue doesn't arise in this case. It has been accepted that Mr Bryant was eligible to apply. I should observe however that it may have been another worker who made the application. There is no requirement of continuity between the person who makes the request under s 50 and the person who makes the request under s 54(1). That reflects the equivalence of interest among workers."
3. There is some difficulty in the drafting of the legislation and ambiguity with respect to who must be a part of the negotiation process for the formation of groups. This ambiguity is carried through to subcl 17(b) - who are the workers whose views must be taken into account in the context of determining the work groups?
4. In the context of resolving these questions, it is appropriate to consider the objectives of Pt 5 of the WHS Act. In NSW Rural Fire Service, Kite AJ summarised a number of key propositions from the legislative scheme at [72], where he stated: "The inferences that I draw from this legislative scheme, looking as a cohesive unit and doing my best 'to give effect to the purpose and language of the provisions', see Project Blue Sky INC v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [70], are: (1) The purpose of Part 5 of the Act is to determine whether and, if so, what work groups should be established for a business or undertaking. (2) The purpose of work groups is to facilitate the election of HSRs. (3) HSRs can undertake an important role in fulfilling the objects of the Act; in particulars 3(1)(c). (4) There is therefore a real public interest in ensuring that, if HSRs are to be elected, their election should be directed to fulfilling the objects of the Act. (5) The process of determining work groups is based on collective negotiation and all workers in that group have an equal interest. They also have an equal interest in the electoral process for HSRs. (6) Notwithstanding this collective element, individual workers are given standing to take actions to ensure the proper, correct or appropriate decision is made. Standing is not expressly enhanced by reason of a worker taking an earlier step. (7) The decision by the inspector is an administrative determination taken when the parties to the negotiations cannot agree. The initiator of this step, whether a worker or otherwise has no different standing to any other interested person. (8) The internal review is an administrative merits review of the inspector's decision based on the material gathered by the inspector as suggested by: (a) The absence of reasons by the inspector; (b) The absence of any information gathering powers peculiar to the internal reviewer other than the ability to request further information from the applicant; and (c) The decision making powers of the internal reviewer. (9) The external review 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."
5. We agree that the legislation provides for a process of determining work groups that is based on collective negotiation, although all workers have an equal interest in that process and are given standing to take actions to ensure the proper, correct or appropriate decision is made.
6. Section 50 of the WHS Act is merely a facilitative provision. It provides for the initiation of a process that may lead to the formation of one or more work groups and, in turn, the election of HSRs. The determination of one or more work groups is to facilitate the election of HSRs, it is not the end in itself: subs 51(2). In turn, the purpose of the election or HSRs is directly relevant to the attainment of the objects of the WHS Act as provided for in subs 3(1)(a)-(c).
7. There is ambiguity in the WHS Act as to with whom the PCBU is required to negotiate once a request has been made pursuant to s 50. The appellants did not argue the provisions in Pt 5 mandate that a PCBU may only negotiate about work groups with workers who have made a request pursuant to s 50 and who will fall within those work groups. A question which arises is whether the requirement in subs 52(2) that the PCBU negotiate with the "workers" is a reference to all of the PCBU's workers, or just those who are to form the work group or work groups yet to be negotiated or agreed.
8. That such ambiguity exists is evidenced by the Review of the Model Work Health and Safety laws Final Report, December 2018, to which SafeWork referred us, in which it was recommended that there be an amendment to the legislation "to provide that a work group is negotiated with workers who are proposed to form the work group": at p 13. It was submitted that all ministers responsible for Workplace Health and Safety had agreed to that recommendation: Agreed response to the Review of the Model Work Health and Safety Laws, published 26 May 2021, p 2.
9. Deliveroo submitted that the negotiations contemplated by s 52 are simply a reference to the negotiations for work groups between the PCBU and those workers who wish to take part in the negotiations. It argued that the participation of some workers in the negotiation process does not have the effect of limiting the scope of the work groups, given the scope itself is a matter of negotiation.
10. It is both logical and consistent with the purpose and objects of the WHS Act to interpret the requirements to negotiate with workers contained in subs 52(2), and to consider the views of workers in subcl 17(b) (by operation of s 52(6)), as imposing an obligation on the PCBU to notify all workers potentially affected by the outcome of the negotiations, of the fact of the negotiations, and to provide them with an opportunity to express their views in relation to the relevant matters, either on an individual basis, or through a representative.
11. Support for this view can be found in the Explanatory Memorandum to the Work Health and Safety Bill, which led ultimately to the proclamation of the WHS Act, cl 218 of which provided: "Subclause 52(1) provides that work groups are negotiated and agreed between the relevant parties. That is, the PCBU and the workers who are proposed to form the work group or their representatives. A worker's representative could be a union delegate or official, or any other person the worker authorises to represent them (see the definition of 'representative' in clause 4)."
12. In the context of these proceedings, the negotiation process and information about the workers' views were only obtained in respect of a subset of workers, namely the appellants and those they represented. Despite this, Commissioner Murphy considered the desirability of all of Deliveroo's "riders" being included in the work groups and made a determination which had the effect of creating work groups in respect of workers who were not involved or represented in the negotiations between the appellants and Deliveroo, and whose views about the relevant matters was not known. Accordingly, Ground 1 and 2 of the appeal are made out.

Ground 3

1. Ground 3 of the appeal requires the resolution of two questions: first, did Commissioner Murphy erroneously construe ss 80-82 of the WHS Act, in determining that if issues arose as a result of the Decision, the appellants or Deliveroo could invoke the issues resolution procedure under the WHS Act and seek the Commission's assistance to resolve those issues; and, second, in making that determination did the Commissioner take into account an irrelevant consideration?
2. The answer to the first question is yes. We agree with the appellants that the reference to the issues resolution procedure in the Decision was a reference to ss 80-82 of the WHS Act and that these sections do not provide a role for the Commission, at least not directly. This was not a matter of controversy in the appeal.
3. We are also persuaded that the second question must also be answered in the affirmative. From a proper reading of the Decision, the purported ability of the parties to invoke the assistance of the Commission to resolve issues formed a part of Commissioner Murphy's reasoning in determining the work groups. The observation is made in the context of the Commissioner explaining the reasons for his Decision. It flows from the preceding paragraph which commences "Further", which can only be read in context as a further reason for the Decision.
4. Accordingly, Ground 3 of the appeal is upheld.

Ground 4

1. Ground 4 of the appeal requires the Full Bench to consider whether Commissioner Murphy was required to take into account the mandatory matters contained in the cll 16 and 17 of the Regulation and, if so, whether he failed to do so.
2. The TWU argues that the Commissioner did not take into account the mandatory factors contained in cll 16 and 17 of the Regulation, relying on an absence of any reference to these in the Decision. SafeWork notes in its submissions that the Decision does not contain any express consideration of the relevance of the matters set out in cl 17 of the WHS Regulation, and if these matters were considered, how they were taken into account. Both the TWU and SafeWork submit that on that basis the Commissioner has fallen into error.
3. Deliveroo's submissions with respect to this ground of appeal follow directly from its argument that the Commissioner was at large in conducting the external review and there was no requirement for him to consider the matters contained in cll 16 and 17 of the Regulation: see above at [41]-[46]. Deliveroo went further in its submissions, arguing that if this was a requirement, the Commission would be made to engage in an inquisitorial exercise.
4. For the reasons set out above, we disagree with Deliveroo's characterisation of the nature of the Commission's powers and function in an external review. With respect to the submission that the Commission would be required to engage in an inquisitorial exercise to comply with the requirement of cll 16 and 17, we note what was said by Kite AJ in NSW Rural Fire Service at [68]-[70]: "The Commission is, generally speaking, an arbitral tribunal. The general functions of the Commission specified in s 146 of the IR Act, for the most part, are undertaken by the Commission hearing the parties and, if conciliation is not successful, determining the issues which divide them. It is true that the Commission does have an inquisitorial role under s 146(d) but that is an exceptional role undertaken on reference from the Minister. The Commission of course has power to compel attendance and production of evidence but again that is usually exercised in an arbitral context with parties presenting their respective cases - as envisaged in s 162(2)(c) of the IR Act. Similarly the Commission's capacity to move on its own initiative to inquire into any industrial matter (s 162(2)(j)) is a facilitative power to resolve industrial issues. The Commission's decision on the review would also be subject to appeal by leave of a Full Bench. An appeal is not available from a report on a Ministerial reference. That is another indication that the nature of the review is a merits review intended to be undertaken in an arbitral not an inquisitorial context. 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. The legislation shows, through the multi-level process for the determination of work groups, an evident importance which suggests that the review by the Commission is intended to permit the arrival at a final and correct result. Either at first instance or on appeal in an appropriate case."
5. While we acknowledge that Inspector Baranovsky was required to undertake his evaluation of the matters contained in cll 16 and 17 in a manner that might be described as inquisitorial, this does not mean that the Commission is required to undertake that task in an external review in in the same manner: see [52] of NSW Rural Fire Service. The Commission appraises itself of the matters required to be taken into account by cll 16 and 17 through a process of arbitration. This is consistent with the way in which the Commission discharges its functions under the IR Act in a range of contexts.
6. The Decision makes no reference to cll 16 and 17 of the Regulation. The Commissioner's analysis engaged with at least some of the factors contained in cll 16 and 17, including creating work groups that "most effectively and conveniently enables the interests of the workers, in relation to work health and safety, to be represented" (subcl 16(a)); the nature of each type of work carried out by the workers (subcl 16(b)); and the nature of any risks to health and safety at the workplace or workplaces (subcl 16(i)). However, it could not be concluded on the face of the Decision that in conducting his analysis the Commissioner had in mind the requirements of cl 16 and 17. In any event, the analysis is by no means exhaustive of the matters to which those provisions require the Commission to have regard.
7. Accordingly, Ground 4 of the appeal is upheld.

Ground 5

1. Ground 5 of the appeal is that Commissioner Murphy failed to give sufficient reasons for his Decision.
2. We do not see that anything is advanced by the appellants in respect of this ground that is not addressed by our finding in respect of Ground 4. That is, had the Commissioner undertaken an analysis of the matters to which he was required by cll 16 and 17 of the Regulation to consider, the basis on which the appellants contend that he failed to provide sufficient reasons would fall away.
3. In the circumstances, it is unnecessary to determine Ground 5.

Conclusion

1. In light of our findings above, we have determined to uphold the appeal, quash the orders of Commissioner Murphy and remit the matter to a single Commissioner to determine the external review in accordance with the law.

Orders and recommendation:

1. Pursuant to s 187 and s 192 of the Industrial Relations Act 1996, the Commission orders that: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The orders of Commissioner Murphy of 12 October 2020 are quashed. 4. The matter is remitted to a single Commissioner, as determined by the Chief Commissioner, to determine the application for external review pursuant to s 229 of the Workplace Health and Safety Act 2011 (NSW) in accordance with the law.

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