Amelio Sarchese v Comcare

[2013] FWC 9437

[2013] FWC 9437

FAIR WORK COMMISSION

DECISION

OH&S review authority

Amelio Sarchese
v
Comcare
(C2013/5818)

VICE PRESIDENT LAWLER SYDNEY, 2 DECEMBER 2013

Work Health and Safety Act 2011 - Application under s.229 for external review - whether amendment should be allowed.

[1] On 18 November 2013 the Fair Work Commission (the Commission) published a decision [2013] FWC 9050 on a jurisdictional objection by Comcare. The Commission concluded:

“[13] ... [T]he 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.”

[2] Mr Sarchese filed an amended application seeking a review of the Internal Review Decision rather than the PIN Cancellation Decision.

[3] A hearing has been conducted on whether that amendment ought be allowed.

[4] I reject a submission by Comcare that the Commission has no power to grant the amendment. I am satisfied that the power to allow amendments granted by s.586 is very broad and confers power to allow the amendment now sought by Mr Sarchese on the basis that it would related back to the time of filing of that application.

[5] However, Comcare also opposed the amendment sought by Mr Sarchese on discretionary grounds. In particular Comcare relied upon the following facts:

• Mr Sarchese’s term as a Health and Safety Representative at the Sydney Gateway Facility expired.



• Mr Sarchese no longer works at the Sydney Gateway Facility.





• Although the PIN Cancellation Decision was based on technical defects in the PIN, Comcare in fact conducted an investigation of the health and safety risks alleged in the PIN and satisfied itself that the relevant safety risks had been properly addressed.

[6] Mr Sarchese’s submissions in response focussed on the substantive merits of his health and safety concerns. He did not seek to dispute those matters. A further discretionary factor emerged during the hearing:

• Mr Sarchese’s pursuit of the health and safety issues addressed in his PIN does not appear to have the support of the Health and Safety Committee or the unions at the Sydney Gateway Facility.

[7] I am persuaded by the discretionary arguments advanced by Comcare and, in the exercise of the Commission’s discretion, I refuse Mr Sarchese’s application to amend. In so doing, I recognise that Mr Sarchese genuinely and strongly believes that his position on the health and safety risks identified in his PIN is correct and that the PIN Cancellation Decision and the Internal Review Decision are both flawed. However, the matters listed in paragraphs [5] and [6] weight decisively against granting the amendment. Mr Sarchese’s move from the Sydney Gateway Facility to an unrelated worksite at Sydney Airport means that he has no continuing personal interest in the alleged safety issues identified in his PIN of January 2013. If there are continuing safety issues at the Sydney Gateway Facility it may be expected that those matters can properly be addressed by the current Health and Safety Representatives and or the Health and Safety Committee at the Sydney Gateway Facility. Given that Mr Sarchese no longer works at the Sydney Gateway Facility, I do not consider it appropriate for Comcare to be put to the considerable trouble and expense involved in responding to Mr Sarchese’s proposed amended application in the absence of support from employee safety representatives at the Sydney Gateway Facility.

[8] The amendment having been refused, it follows that the originating application remains outside the Commission’s jurisdiction for the reasons given in [2013] FWC 9050 and must be dismissed. An order dismissing the application has issued in conjunction with these reasons.

VICE PRESIDENT

Appearances:

Mr A. Sarchese on his own behalf

Mr N. Neil from Work Health and Safety Legal, Comcare on behalf of the Respondent

Hearing details:

2013.

Sydney;

2 December (via tele-conference)

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