Airservices Australia Pty Ltd Trading as Airservices v Comcare Australia - [2025] FWC 2145

[2025] FWC 2145

FAIR WORK COMMISSION

DECISION

Work Health and Safety Act 2011

s.229 WHS Act - WH&S Review Authority

Airservices Australia Pty Ltd Trading AS Airservices
v

Comcare Australia

(C2025/3145)

DEPUTY PRESIDENT FAROUQUE

MELBOURNE, 23 JULY 2025

Interim or procedural decision – Application for stay of Improvement Notice

Introduction

On 22 April 2025, Airservices Australia Pty Ltd (Airservices) made an application (External Review Application) to the Commission under s 229 Work Health and Safety Act 2011 (Cth) (WHS Act).

The External Review Application names Comcare as the Respondent. Airservices seeks by way of final relief the revocation of an Improvement Notice issued by Inspector Komal Norman issued pursuant to s 191 of the WHS Act and the revocation of a decision, by Ms Fiona Darrow (Assistant Director of Comcare) made pursuant to s 226(2)(b) of the WHS Act.

On 22 May 2025, I made a decision under s 589 and 590 of the Fair Work Act 2009 (FW Act) to permit Mr Jason Adams to participate in the External Review Application by giving evidence, cross-examining witnesses called by a party and making submissions.

The External Review Application is listed for final hearing on 19 & 20 August 2025.

This decision is made in respect of an interim application by Airservices dated 10 June 2025 for stay (Stay Application) of the Improvement Notice pending a decision on the External Review application.

Airservices has filed a submission dated 10 June 2025 in support of the stay application. Mr Adams has filed a submission dated 16 June 2025 and Witness Statement dated 16 June 2025 in opposition to the stay application. Comcare has filed a submission dated 24 June 2025, in opposition to the stay application. The parties and Mr Adams have indicated that they are satisfied for me to determine the stay application on the papers and without a hearing.

Background

The factual background to the External Review Application is set out in my earlier decision to permit Mr Adams to participate in the External Review Application.[1] For convenience, I repeat those factual matters below:

a)Mr Adams is employed by Airservices in the position of Lead Aviation Firefighter in Aviation Rescue and Fire Fighting Services (ARFFS) at Melbourne Airport. Mr Adams is an elected HSR under the WHS Act for the ARFFS “A” crew. The ARFFS “A” crew is one of four ARFFS crews who operate in rotation across Melbourne Airport;
b)On 22 November 2024, Mr Adams issued a provisional improvement notice (PIN) to Airservices under s 90 of the WHS Act. Airservices’ External Review application describes the PIN as being “in relation to incomplete radio coverage at Melbourne Airport following the implementation of a radio system introduced by Airservices to address deficiencies in the previous copper-based system”;

c)On 29 November 2024, Airservices requested a review of the PIN by Comcare pursuant to s 100 of the WHS Act. Comcare is the regulator under the WHS Act;

d)On 29…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Airservices Australia Pty Ltd Trading as Airservices v Comcare Australia [2025] FWC 2145
Case: [2025] FWC 2145
Decision Date: 23 JULY 2025

CaseChat Overview and Summary

Airservices Australia Pty Ltd Trading as Airservices applied to the Fair Work Commission for a stay of an Improvement Notice issued by Comcare, the regulator under the Work Health and Safety Act 2011 (WHS Act). The Improvement Notice was issued by Inspector Komal Norman following a provisional improvement notice issued by Mr Jason Adams, an HSR for Airservices. Airservices sought the stay pending a final hearing on the merits of the external review application. The key legal issues before the Deputy President were whether the Commission had the power to grant a stay of the Improvement Notice and, if not, whether the Commission had the power to make an interim decision to vary the Improvement Notice. The Deputy President found that the WHS Act did not confer a power on the Commission to stay a decision that is the subject of an external review application. The Deputy President considered the Fair Work Act 2009 (FW Act) and concluded that while the Commission had the power to make an interim decision under s 589(2) of the FW Act, the power was constrained by the substantive provisions of the WHS Act. The Deputy President also found that there was a serious question to be tried on the merits but that the balance of convenience did not favour making an interim variation to the Improvement Notice. Consequently, the application for a stay was dismissed.

Orders