Amelio Sarchese v Comcare

[2013] FWC 9050

[2013] FWC 9050

FAIR WORK COMMISSION

DECISION

OH&S review authority

Amelio Sarchese
v
Comcare
(C2013/5818)

Commonwealth employment
VICE PRESIDENT LAWLER	SYDNEY, 18 NOVEMBER 2013

Work Health and Safety Act 2011 - Application under s.229 for external review - whether FWC has power to extend time for the filing of an application as specified in s.229(2)(b).

[1] On 11 January 2013 Mr Amelio Sarchese, a health and safety representative at the Australia Post facility at Redfern, issued a Provisional Improvement Notice against his employer, Australia Post, under the terms of the Work Health and Safety Act 2011 (WHS Act).

[2] On 16 April 2013 a decision was made by Inspector Boyce to cancel that Provisional Improvement Notice (the PIN Cancellation Decision).

[3] Mr Sarchese applied for an internal review of the PIN cancellation decision.

[4] On 7 May 2013 Mr Sarchese’s application for an internal review of the PIN Cancellation Decision was rejected by the Review Officer, Mr Boundy (the Internal Review Decision).

[5] On 21 May 2013 Mr Sarchese filed an originating application in the Fair Work Commission seeking an external review pursuant to s.229 of the WHS Act. On its face, that application appears to seek a review of the PIN Cancellation Decision.

[6] Section 229 of the WHS Act provides:

“229 Application for external review

(1) An eligible person may apply to the Fair Work 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 external review body to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.

(3) The Fair Work Commission may do any of the following in relation to the decision to which the application relates:

(a) confirm the decision;

(b) vary the decision;

(c) set aside the decision and make a decision in substitution for the decision set aside.”

[7] The term “regulator” is defined in s.4 of the WHS Act to mean Comcare. Comcare contends that the PIN Cancellation Decision was not a decision of “the regulator” and therefore not amenable to external review under s.229. It is unnecessary to determine that contention.

[8] Mr Sarchese does not complain about a decision “to forfeit a thing (including a document)” or a requirement “by [an] external review body to give the eligible person a statement of reasons”. Accordingly, s.229(2)(a) and (c) have no application and s.229(2)(b) applies.

[9] The Commission is a creature of statute. Its powers are limited by the terms of the Fair Work Act 2009 (FW Act) and any other statute relating to the Commission’s powers and functions. Specifically, s.229(2) imposes a jurisdictional limitation, namely that any application under s.229 must be made within the time period specified in s.229(2).

[10] The present application, by its terms, is directed at the PIN Cancellation Decision but was made more than 14 days after the PIN cancellation decision, and therefore was made outside the limitation period specified in s.229(2).

[11] The Commission has no jurisdiction to arbitrate an application under s.229 made outside the time period specified in s.229(2) unless the Commission has a power to extend time for the making of that application and exercises that power to extend time.

[12] I am unable to identify any power to extend time for the making of an application under s.229 of the WHS Act in the WHS Act, the Fair Work Act 2009 (FW Act) or any other Act. I reject Mr Sarchese’s contention that s.586 of the FW Act is a source of a power to extend the time specified in s.229(2) of the WHS Act.

[13] Accordingly, the present application, in so far as it seeks a review of the PIN Cancellation Decision, was prevented by s.229(2) and the Commission had no jurisdiction to arbitrate it.

[14] However, that is not the end of the matter. Mr Sarchese is not a lawyer. It was tolerably clear from Mr Sarchese’s position at the first mention of this matter that, in fact, he contended that the Internal Review Decision was wrong and affected by error and that he intended his originating application to extend to challenge that decision (albeit that that intention was not manifested in clear words in the originating application). The originating application was made within the 14 day time period specified in s.229(2)(b) after the Internal Review Decision.

[15] In the exercise of the Commission’s discretion, I have decided that Mr Sarchese should have an opportunity to seek, pursuant to s.586 of the FWA Act, to amend his originating application to seek a review of the Internal Review Decision instead of the PIN Cancellation Decision, which amendment would, by order, relate back to the date the application was filed.

[16] The Commission directs:

1. Mr Sarchese to file and serve on Comcare, by 5.00pm on 27 November 2013, an amended application that seeks a review of the Internal Review Decision (rather than the PIN Cancellation Decision) and specifies the grounds on which the Internal Review Decision is challenged.

2. That the matter be listed for mention at 10am on 30 November 2013 at which time the Commission will determine whether the amendment, if any, sought by Mr Sarchese can (as a matter of power) and should (as a matter of discretion) be allowed with a relation back to 21 May 2013, the date the originating application was filed.

VICE PRESIDENT

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