The Transport Workers' Union of NSW (the first appellant) filed, on 10 November 2020, an Application for Leave to Appeal and Appeal pursuant to s 187 of the Industrial Relations Act 1996 (NSW) (the IR Act) from a decision of Commissioner Murphy in six applications for external review, pursuant to s 299 of the Work Health and Safety Act 2011 (NSW) (WHS Act) (Decision).
Commissioner Murphy made the following Orders in the Decision (Tcpt, 12 October 2020, p 9-11):
"I have decided that the internal review decision of Assistant State Inspector Issa be varied to provide that the work group structure proposed by Deliveroo be implemented as follows:
1. Workgroups in Sydney are to be formed according to geographical regions: Central, North, South and West with each region containing selected zones/clusters.
2. Riders/drivers in each region are to be broken down into work groups according to vehicle type. Three vehicle type groups are noted (bicycle, scooter/motorcycle and car).
3. South, West and North regions will include a two-wheel vehicle work group which combines bicycles with scooters and cars as a separate group. This is due to low bicycle numbers in each abovementioned region.
4. Central region will combine cars with scooters and have two work groups, motorised and bicycle. This is due to low car numbers and high bicycle numbers.
5. The range of 4-8 work groups is proposed as well as the appropriate number of required HSRs across the abovementioned workgroups.
6. Workgroup 1 - Central will have 8 HSRs and comprise the following zones: CBD (SCTY), Far East (SFET), Inner East (SITE), Middle East (SMET), Bondi Junction (SYBJ), Alexandria (SYAX), Coogee (SYCG), Maroubra (SYMB), Balmain (SYBM), Glebe (SYGB), Pyrmont (SYPT), Inner West (SYIW), Haberfield (SYHF), Five Dock (SYFD) and Marrickville (SYMV).
7. Workgroup 2 - North will have 3 HSRs and comprise the following zones: Eastwood (SYEW), Macquarie Park (SYMQ), Ryde (SYRY), Hornsby (SYHB), Pennant Hills (SYPH), Mossman (SYMO), Chatswood (SYCW), Lower North Shore (SYLN), Manly (SYMY), Dee Why (SYDY) and Narrabeen (SYNB)."
8. Workgroup 3 - South will have 2 HSRs and comprise the following zones: Brighton Le-Sands (SYBL), Hurstville (SYHV), Bankstown (SYBT), Revesby (SYRB), Clemton Park (SYCP), Caringbah (SYCA), Campbelltown (SYCT), Narellan (SYNL), Miranda (SYMD) and Menai (SYMN).
9. Workgroup 4 - West will have 2 HSRs and comprise the following zones: Baulkham Hills (SYBH), Blacktown (SYBN), Fairfield (SYFF), Liverpool (SYLP), Parramatta (SYPA), Penrith (SYPR), Rhodes (SYRD) and Mount Druitt (SYMT).
10. This decision extends to Deliveroo delivery riders/drivers within the Sydney metropolitan region where Deliveroo primarily operates. Workers who fall outside this classification are not included in this decision. This decision reflects current Deliveroo working arrangements at the time of issue.
The Application for Leave to Appeal and Appeal identifies the following question 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 At, 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)
The Application for Leave to Appeal and Appeal sets out the following Grounds upon which the first appellant seeks Leave to Appeal:
"1. The appeal raises for determination an issue of general importance and significance, which has not been the subject of Full Bench consideration, in relation to the proper construction of ss 50-52 of the WHS Act and the ambit of the power to determine work groups where a worker or workers request work groups be formed that include particular workplaces in the business or undertaking of the PCBU but not others, where no negotiations occur between the PCBU and workers from workplaces not encompassed by the requests, and where the views of workers from such other workplaces are not obtained by either the PCBU, an inspector exercising power under s 54 of the WHS Act or the Commission on an external review. The appeal is an appropriate vehicle for determination of the proper construction of ss 50-52 of the WHS Act as the requests made under ss 50-51 of the WHS Act by the individual appellants were for the formation of work groups that were geographically confined.
2. The Commissioner determined work groups that went beyond the geographical confines of these requests and included groups of workers not represented by the requesting workers, whom Deliveroo Australia Pty Ltd as PCBU did not negotiate with and whose views were otherwise not obtained by Deliveroo or the Inspector appointed under s 54 of the WHS Act of the Commission.
3. The Commissioner's construction of ss 50-52 caused him to act beyond power. Full Bench intervention is warranted to correct an error that resulted in the determination of work groups ultra vires the WHS Act.
4. The Commissioner made an error of law in failing to take into account the mandatory considerations under s 52(6) of the WHS Act, viz., rr 16-17 of the Regulations. This was an error that caused the Commissioner to fail to properly exercise his jurisdiction.
5. The Commissioner made an error of law of general importance that impels appellate correction by concluding that the issue resolution procedure under the WHS Act allowed a trade union and/or PCBU to raise issues relating to the determination of work groups and seek the Commission's assistance in resolving these, when ss 80-82 of the WHS Act permit no such thing.
5. The Commissioner denied the appellant procedural fairness by failing to give adequate reasons for his decision and otherwise enter into or address clearly articulated arguments of the appellants."
(Emphasis in original)
On 18 December 2020, Deliveroo Australia Pty Ltd (the second respondent), filed a notice of motion seeking an order that it be granted leave to file and serve further evidence in the appeal, pursuant to s 191(2) of the IR Act (Notice of Motion). The Grounds and Reasons given in the Notice of Motion are in the following terms:
(1) In accordance with Commissioner Murphy's decision, dated 12 October 2020, the Second Respondent has taken steps to establish the workgroups as determined by Commissioner Murphy, and the elections of health and safety representatives.
(2) The Second Respondent seeks leave to adduce an affidavit containing evidence of the matters referred to in paragraph 1 above.
(3) The evidence will be relevant to:
a. the question of whether leave to appeal will be granted to the appellant; and
b. should leave be granted (which is opposed), the exercise of the discretion of the Commission to determining the workgroups on a rehearing.
The hearing of the second respondent's Notice of Motion took place before the Full Bench on 10 March 2021.
During the hearing of the Notice of Motion, the second respondent confirmed that the only basis upon which it sought to adduce the evidence was in support of its resistance to the application for Leave to Appeal (Ground (3)(a) above).
The Notice of Motion was supported by an affidavit of Ms Julia Duck, Rider Lifecycle Manager of the second respondent, filed 18 December 2020 (the Duck affidavit).
The first appellant also filed a notice of motion similarly seeking leave to file evidence in the appeal. However, the first appellant informed the Commission that this motion was to be regarded as responsive to that of the second respondent. Counsel for the first appellant accepted that if the second respondent's Notice of Motion was dismissed, or otherwise determined on terms acceptable to the first appellant, the first appellant's motion would fall away.
Prior to the hearing, the Commission directed the parties to file by 12 noon Monday, 8 March 2021, any written submissions upon which they intended to rely. There were no written submissions filed by the parties with respect to the matter and the parties delivered their submissions with respect to the Notice of Motion orally at the hearing.
[2]
Relevant legislation and principles
Section 191 of the IR Act provides:
191 Nature of appeal
(1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against.
(2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against.
(3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.
The second respondent relies upon the second limb of s 191(2), namely, it seeks leave to adduce the further evidence on the basis that it concerns matters occurring after the decision appealed against.
As the second respondent asserts that the evidence upon which it seeks to rely is relevant to the question of Leave to Appeal, it is appropriate to set out the principles relevant to that question.
An appeal to the Full Bench under Ch 4 Pt 7 of the IR Act may be made only with the leave of the Full Bench: s 188(1). The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2).
The principles relevant to leave to appeal 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 as follows:
"[10] It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal.
[11] The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263:
[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]."
[3]
Consideration
In order for the Full Bench to determine whether it is appropriate that leave be granted for the evidence to be introduced, it is necessary to consider the proposed evidence.
The evidence set out in the Duck affidavit, taken at its highest for the purposes of the Notice of Motion, establishes:
1. Various steps have been taken by the second respondent since the receipt of Commissioner Murphy's Decision to nominate and elect Health and Safety Representatives (HSRs) in accordance with the second respondent's obligations under the WHS Act.
2. Since the Decision, work groups have been determined in accordance with the orders of Commissioner Murphy and elections held for HSRs.
3. As at 17 December 2020, HSRs had not been elected for the Sydney Central (motorised work group) and the Sydney North (2-wheeled workgroup). This is because riders in these work groups have requested consultation with the second respondent for the purposes of the elections and/or to conduct their own elections. At that time, it was anticipated that HSRs for these groups would have been elected by January 2021.
4. As at 17 December 2020, the second respondent was in the process of recruiting an additional part-time employee to assist with the administration associated with the implementation of work groups and payments to HSRs.
5. Between 17 December 2020 and the hearing of the appeal, it was expected that the elected HSRs will:
1. meet with other riders in their work group, either in person or over the phone or email;
2. undertake consultations with riders in their work group;
3. engage in discussions with the second respondent regarding their health and safety concerns; and
4. report back to riders in their work group on the outcome of any discussions with the second respondent.
The evidence upon which the second respondent sought to rely clearly relates to facts and circumstances arising after the Decision. The second respondent relied on the language of s 191(2) of the IR Act to argue that it was therefore not required to establish that "special grounds exist" for the evidence to be received. However, leave of the Full Bench is nonetheless required for the second respondent to adduce the further evidence. That leave is not to be presumed, and requires the Full Bench to be satisfied that the proposed evidence has probative value to a matter arising in the appeal.
The second respondent argued that the proposed evidence is relevant to the question of Leave to Appeal. The premise of this contention was that despite appealing against the Decision, the first appellant had not sought a stay of Commissioner Murphy's orders. The second respondent had, as a consequence, acted in accordance with the Decision by taking the steps outlined in the Duck affidavit. While the second respondent did not articulate its submissions in these precise terms, it seemed to contend, and the legal representative for the second respondent did not demur when it was put to her by Commissioner Sloan that its submission on this point seemed to him to be, that in the Full Bench's determination of whether to grant leave to appeal, it should take into account whether there had been "fair play" in the conduct of the first appellant not having sought a stay and the further evidence deals with the consequences of this. That is, that as a matter of discretion, the Full Bench could have regard to notions of industrial fairness as between the parties to decide whether the first appellant ought to be permitted to run its appeal.
In determining whether Leave to Appeal should be granted, the Full Bench is required to consider whether, in its opinion, the matter "is of such importance that, in the public interest, leave should be granted" in accordance with the principles enunciated in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services. The "matter" for the purposes of s 188(2) is the matter, or matters, arising under the appeal. The questions which the first appellant contends the appeal give rise to are set out above. They are legal questions. The second respondent was unable to explain how the evidence on which it seeks to rely would assist the Full Bench to make the determination required by s 188(2) of the IR Act.
We are of the view that the fresh evidence if adduced, and at its highest, would have little, if any, relevance to whether the matters raised in the Grounds of Appeal are of such importance, that in the public interest, leave should be granted or whether the Grounds raise substantial issues of principle or law or have wider implications for the jurisdiction of the Commission such that Leave to Appeal should be granted.
For these reasons, we have determined not to exercise our discretion to grant leave to the second respondent to adduce the proposed evidence.
Accordingly, we have decided to dismiss the motion.
[4]
Orders:
We make the following order:
1. The Notice of Motion filed by the second respondent on 18 December 2020 is dismissed.
[5]
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