Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch

The appeal concerned a decision by the National Rail Safety Regulator (the Regulator) to grant an application by Aurizon Operations Limited (Aurizon) to vary its accreditation under the Rail Safety National Law (NSW). The Australian Rail Tram and Bus Industry Union NSW Branch (the Union) challenged the Regulator's decision, alleging jurisdictional error. The primary judge had found in favour of the Union, declaring the Regulator's decision invalid. Aurizon and the Regulator appealed this decision to the Court of Appeal.

The Court of Appeal was required to determine whether the Regulator had committed jurisdictional error in its construction and application of various provisions of the Rail Safety National Law (NSW), specifically concerning the consultation requirements and the nature of the opinion the Regulator was required to form before varying accreditation. Key issues included the interpretation of section 99(3)(a)(iii) regarding consultation with "persons likely to be affected" and whether the term "representing" in that section meant "entitled to represent". The court also considered whether the primary judge had erred in interpreting section 99(3)(a)(i) as a deeming provision and whether the Regulator had misunderstood the nature of the opinion required under sections 65(c)(iii) and 69(1)(a).

The Court of Appeal allowed the appeal and the cross-appeal, setting aside the primary judge's orders. The court found that the Regulator had not erred in its construction of the relevant provisions. It interpreted section 99(3)(a)(iii) to mean that the Regulator was required to consult with unions that were "entitled to represent" the employees likely to be affected, not merely those who were in fact representing them. Furthermore, the court determined that section 99(3)(a)(i) was not a deeming provision and that the Regulator had correctly understood the nature of the opinion required. Consequently, the primary judge's declaration of invalidity was overturned. The amended summons filed by the Union was dismissed, and Aurizon was ordered to pay the Union's costs at first instance, while the Union was ordered to pay Aurizon's costs of the appeal.