Airservices Australia Pty Ltd Trading as Airservices v Comcare Australia - [2025] FWC 1424

[2025] FWC 1424

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 MAY 2025

Fair Work Act s.589(1) and s.590 – Procedural decision – Application by Mr Jason Adams to intervene in the matter – Alternative application by Mr Jason Adams to participate in the matter by giving evidence etc. – Application to intervene dismissed – Application to participate by giving evidence etc granted.

Background

This decision concerns an application by Mr Jason Adams to intervene in or alternatively to participate in an application made under s 229 Work Health and Safety Act 2011 (Cth) (WHS Act) by Airservices Australia Pty Ltd (Airservices) (External Review Application) in the Fair Work Commission (Commission).

Mr Adams makes his application under s 589(1) and s 590 of the Fair Work Act 2009 (Cth) (FW Act). In respect of intervention, Mr Adams seeks leave to intervene and participate as a party. In respect of his alternative application, Mr Adams seeks leave to participate in the External Review Application by giving evidence, cross-examining witnesses and making written and oral submissions.

The External Review Application names Comcare as respondent.

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.[1] The ARFFS “A” crew is one of four ARFFS crews who operate in rotation across Melbourne Airport.

On 22 November 2024, Mr Adams issued a provisional improvement notice (PIN) to Airservices under s 90 of the WHS Act. The Airservices External Review Application form 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.”

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.

On 29 November 2024, Comcare appointed Inspector Komal Norman to review the PIN pursuant to s 101 of the WHS Act. On 26 February 2025, Inspector Norman confirmed the PIN with changes pursuant to s 102(1)(b) of the WHS Act. Consequent on that confirmation, Inspector Norman issued an Improvement Notice dated 26 February 2025 pursuant to s 191 of the WHS Act. The Improvement Notice recorded Inspector Norman’s formation of a belief, expressed as a reasonable belief, that Airservices “is contravening section 19 of the [WHS Act] by failing to ensure, so far as is reasonably practicable, the health and safety of workers at the workplace and others, as it has not rectified known issues with the radio system in circumstances where ARFFS workers are unable to communicate effectively and efficiently including…

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 1424
Case: [2025] FWC 1424
Decision Date: 23 MAY 2025

CaseChat Overview and Summary

Airservices Australia Pty Ltd Trading as Airservices has applied to the Fair Work Commission for an external review of a decision by Comcare to confirm an improvement notice issued by an inspector under the Work Health and Safety Act 2011 (Cth) (WHS Act). Mr Jason Adams, an employee of Airservices and elected Health and Safety Representative (HSR) for a workgroup, has applied to intervene in or participate in the proceedings. The Fair Work Act 2009 (Cth) (FW Act) provides for intervention by non-parties only if they have a direct right, interest or legitimate expectation affected by the proceedings. The Fair Work Commission (FWC) has held that intervention by a non-party is not permissible where there is no such direct right, interest or expectation. However, the FWC has a broad discretion under s 590 of the FW Act to permit a non-party to participate in a proceeding, if the FWC is satisfied that the non-party has an interest in the proceeding. The FWC must consider whether the non-party's participation would be useful to the FWC in the consideration and determination of the proceeding and whether the participation is fair and just. The FWC is also mindful of the FWC's function to resolve disputes quickly and informally.

Deputy President Farouqe found that Mr Adams has an interest in the outcome of the external review proceeding because he is an employee exposed to the risks to health and safety subject of the proceeding and he is an HSR entitled to represent workers in matters relating to health and safety. Deputy President Farouqe found that Mr Adams’ participation in the proceeding would be useful to the FWC in the consideration and determination of the proceeding because he is well placed as HSR to provide the perspective of operational employees and he is in a position to assist the FWC in providing first-hand and operational evidence and submissions on matters relevant to the review application. The Deputy President also found that Mr Adams’ participation would be fair and just, having regard to his representative function as HSR. The Deputy President found that the balance of considerations was such that Mr Adams should be permitted to participate in the proceeding by giving evidence, cross-examining witnesses called by a party and making submissions. An order will be issued to give effect to this decision and a Mention will be listed to deal with the further programming of the matter including programming of the stay application.

This decision illustrates the broad discretion available to the FWC under s 590 of the FW Act to permit a non-party to participate in a proceeding, even if the non-party does not have a direct right, interest or legitimate expectation affected by the proceeding. The decision also illustrates the importance of the FWC considering the usefulness of the non-party’s participation, the fairness and justice of the participation and the FWC’s function to resolve disputes quickly and informally, in exercising its discretion under s 590.

Orders