Burke v Work Health and Safety Commissioner
[2022] ACAT 77
•27 September 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BURKE v WORK HEALTH AND SAFETY COMMISSIONER
(Administrative Review) [2022] ACAT 77
AT 34/2022
Catchwords: ADMINISTRATIVE REVIEW – Work Health and Safety Act 2011 – request for appointment of health and safety representative – failure of negotiations – appointment of inspector – whether appointment is under the Legislation Act 2001 – matter dismissed for want of jurisdiction
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 9, 67A, 68
Legislation Act 2001 ss 6, 127, 141, 142, 206
Work Health and Safety Act 2011 ss 50, 51, 52, 54, 61, 62, 63, 64, 65, 66, 67, 68,156, 160, 223, 224, 225, 226, 227, 229
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Regulation 2009 s 9
Cases cited:Bushell v Repatriation Commission [1992] HCA 47
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Commissioner of Taxes (Vic) v Lennon (1921) 9 CLR 579
Commissioner for Social Housing in the ACT & Massey [2013] ACAT 41
Director of Housing v Sudi [2011] VSCA 266
Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85
NSW Wales Fire Service v SafeWork NSW [2016] NSWIRComm 4
R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26
XY v Director-General, Education Directorate [2018] ACAT 68
Tribunal:Presidential Member H Robinson
Date of Orders: 27 September 2022
Date of Reasons for Decision: 27 September 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 34/2022
BETWEEN:
FABION BURKE
Applicant
AND:
WORK HEALTH AND SAFETY COMMISSIONER
Respondent
TRIBUNAL:Presidential Member H Robinson
DATE:27 September 2022
ORDER
The Tribunal orders that:
The matter under review is dismissed for want of jurisdiction.
………………………
Presidential Member H Robinson
REASONS FOR DECISION
By way of an application dated 3 June 2022, the applicant sought review of a decision of the respondent, the Work Health and Safety Commissioner (Commissioner) pursuant to the Work Health and Safety Act 201I (WHS Act). The applicant contends that the decision was made pursuant to section 54(2)(a) of that Act, but the respondent denies this and seeks that the application be dismissed for want of jurisdiction on the basis that there is no reviewable decision.
Background
The WHS Act establishes a nationally consistent framework of health and safety laws in the ACT. Amongst other things, it provides for workplace consultation and worker participation and representation on workplace health and safety matters.[1]
[1] See Work Health and Safety Act 2011 section 3; Explanatory Statement to the Work Health and Safety Bill 2011
Part 5 of the WHS Act sets out the relevant provisions relating to workplace consultation, representation and participation.
Section 50 provides that a worker has a right to request that a person conducting a business or undertaking (PCBU) facilitate the election of one of more health and safety representatives:
50 Request for election of health and safety representative
A worker who carries out work for a business or undertaking may ask the person conducting the business or undertaking to facilitate the conduct of an election for or more health and safety representatives to represent workers who carry out work for the business or undertaking.
Section 51 provides that where such a request is made, the PCBU must determine one or more groups of workers (work groups) to facilitate representation:
51 Determination of work groups
(1)This section applies if—
(a)a request is made under section 50 (Request for election of health and safety representative); or
(b)the principal contractor for a major construction project is required, under section 50C (2), to facilitate the conduct of an election.
(1A)The person conducting the business or undertaking, or the principal contractor, must facilitate the determination of 1 or more work groups of workers.
(2)The purpose of determining a work group is to facilitate the representation of workers in the work group by 1 or more health and safety representatives.
(3)A work group may be determined for workers at 1 or more workplaces.
Section 52 sets out how negotiations for the agreement of work groups are to be conducted by a PCBU. It provides:
52 Negotiations for agreement for work group
(1)A work group is to be determined by negotiation and agreement between—
(a)the person conducting the business or undertaking; and
(b)the workers who will form the work group or their representatives.
(2)The person conducting the business or undertaking must take all reasonable steps to commence negotiations with the workers—
(a)for a major construction project—when work on the project commences; or
(b)in any other case—within 14 days after the day a request is made under section 50 (Request for election of health and safety representative).
(3)The purpose of the negotiations is to determine—
(a)the number and composition of work groups to be represented by health and safety representatives; and
(b)the number of health and safety representatives and deputy health and safety representatives (if any) to be elected; and
(c)the workplace or workplaces to which the work groups will apply.
(4)The parties to an agreement concerning the determination of a work group or groups may, at any time, negotiate a variation of the agreement.
(5)The person conducting the business or undertaking must, if asked by a worker, negotiate with the worker’s representative in negotiations under this section (including negotiations for a variation of an agreement) and must not exclude the representative from those negotiations.
Maximum penalty:
(a)in the case of an individual—$10,000; or
(b)in the case of a body corporate—$50,000.
Note Strict liability applies to each physical element of this offence (sees 12A).
(6)A regulation may prescribe the matters that must be taken into account in negotiations for, and determination of, work groups and variations of agreements concerning work groups.
Sections 16 and 17 of the Work Health and Safety Regulation 2011 set out the matters that must be taken into account in negotiations.
Section 54 is entitled “Failure of negotiations” and provides as follows:
54 Failure of negotiations
(1) If there is a failure of negotiations (including negotiations concerning the variation of an agreement), any person who is or would be a party to the negotiations may ask the regulator to appoint an inspector for the purposes of this section.
(2) An inspector appointed under subsection (1) may decide—
(a)the matters referred to in section 52(3) (Negotiations for agreement for work group) or any of those matters which is the subject of the proposed variation (as the case requires); or
(b)that work groups should not be determined or that the agreement should not be varied (as the case requires).
(3) For the purposes of this section, there is a failure of negotiations if—
(a)the person conducting the business or undertaking has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced—
(i)for a major construction project—when work on the project commences; or
(ii)within 14 days after the day a request is made under section 50 (Request for election of health and safety representative); or
(iii)within 14 days after the day a party to the agreement requests the variation of the agreement; or
(b)agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence.
(4) A decision under this section is taken to be an agreement under section 52.
(5) In this section:
person conducting a business or undertaking includes the principal contractor for a major construction project.
Sections 61 to 68 then set out the procedure for the election of health and safety representatives (HSRs) for work groups, as well as eligibility requirements.
The primary issue in this case is the interpretation of sections 54(1) and 54(3)(b), and whether there has been a “failure of negotiations” because “agreement cannot be reached on a matter relating to determination of a work group.”
Chronological background
The applicant is an employee of Recruitment Solutions Pty Ltd, a division of Chandler Macleod (Chandler Macleod). Neither of these entities are a party to proceedings.
In late November 2021 there commenced a series of correspondence between the applicant and his employer. It is useful to set some of this out, as it forms an illustrative background to how this matter came to be before the Tribunal.
On Friday, 26 November 2021 the applicant sent an email to Mr Neville Smith, an employee of Chandler Macleod, under the heading “Re: Chandler Macleod Christmas.” It read:
Hi Neville,
I was wondering what date the Christmas party for contractors is and when we have to RSVP by?
Thanks Fabion
On Monday, 29 November 2021 Mr Smith responded as follows:
Hi Fabion,
Good Afternoon and hope you had a nice weekend.
Unfortunately, this year owing to safety reasons and public concerns, we will not be having a Christmas contractor party.
However, should there be any change we will keep you posted on this.
Kind Regards
Neville Smith
Several hours later, the applicant replied:
From: Fabion Burke
Sent: Monday, 29 November 2021 2:29PM
To: Neville Smith
Subject: Chandler Macleod Christmas Party
Hi Neville
I’m sorry to hear that, it’s very surprising because there are no health restrictions that would significantly limit the ability of CM to host a christmas party and in fact the public’s concern is that parties should be going ahead to avoid local venues going broke and closing for good. In fact, I have attended several christmas parties for my client and my spouse’s workplaces already and I can confirm your concerns are unfounded and wrong.
Can you please let me know what health concerns exist that you are making reference to and what public concerns you have in mind?
And additionally, if there is in fact no party, will there be a gift card or bonus instead to recognise everyone’s efforts in such a difficult year? I presume there is an upcoming announcement on this topic but please let me know.
Thanks Fabion
Having not received a response for several days, the applicant followed up the following Sunday, 5 December 2021 at 16:55 in the following terms:
Hi again Neville
It’s a little discourteous of you to not respond to my earlier email, particularly because you have raised safety concerns which may affect me and I am becoming very stressed about because you are keeping me in the dark regarding them. I still do not know what safety concerns you are referring to, and separately I have not received any WHS induction or training from our company so I am doubly concerned, as I do not know where to seek further information.
Can you please send me the URL and login details to our corporate intranet and staff directory so I can try to find some answers on this ASAP.
Thanks Fabion
The applicant sent a further message the next day:
From: Fabion Burke
Sent: Monday, 6 December 2021 3:25 PM To: Neville Smith Subject:
Re: Chandler Macleod Christmas Party
Hi Neville
Another point is that I am an employee of Chandler Macleod, not a contractor (I used the word earlier as a colloquialism) - your email has implied to me that there is a party going ahead for the employees. Can you please let me know whether there is an employee event or not?
Cheers
Fabion
Mr Smith then replied as follows:
Hi Fabion,
Good Afternoon and apologies for the delayed response.
The safety part that I mentioned was from a general perspective and you can be rest assured that there is nothing to worry about or be concerned off [sic].
However, the organisation has decided not to hold a Christmas party this year. Sorry about this and look forward to a wonderful New Year.
Kind Regards
Neville Smith
The documents before me do not disclose the exact time of this response from Mr Smith, but it was presumably sometime between 3:24pm and 4:13pm on Monday 6 December 2021, because at 4:13pm the applicant responded with a formal request to elect a health and safety representative under section 50 of the WHS Act:
From: Fabion Burke
Sent: Monday, 6 December 2021 4:13PM
To: Neville Smith
Subject: Re: Chandler Macleod Christmas Party
Hi Neville Thanks for your email today. I understand that we are not having a Christmas party this year.
However, as you have said, this decision was made because of safety reasons. I do not understand these reasons, and it is not sufficient for you to state that they are ‘general’ reasons and not able to be particularly identified. I repeat my question - what safety reason exists that made it unsafe to hold a Christmas party this year?
Further, and more importantly, because I’ve been facing delays from you in regard to safety information and I have no alternative contacts within Chandler Macleod to seek safety information, I hereby invoke my statutory right under section 50 of the Work Health and Safety Act 2011 (ACT) and request the election of a Health and Safety Representative. I further nominate myself for election to that position.
As you may be aware, negotiations to determine work groups for this purpose must be commenced within 14 days of this request.
Can you please forward this request to the appropriate manager within Chandler Macleod that is authorised to deal with it, and carbon copy me into that correspondence. In the alternative I will serve a copy of this notice on the company by ordinary service - in this event I will rely upon this notice should the issue of costs arise.
Kind regards
Fabion
(the request)
There is no dispute that this is a valid request for the election of HSRs under section 50 of the WHS Act. The applicant forwarded the request to Chandler Macleod’s legal team shortly thereafter, and the payroll team the next day, at 5:07pm on 7 December 2021. Both emails were under the subject header of “fwd: Chandler Macleod Christmas Party”.
Later that same day, Mr Brett Davis, another employee of Chandler Macleod, responded to Mr Burke as follows:
From: Brett Davis
Sent: Tuesday, 7 December 2021 5:42 PM To: Fabion Burke
Cc: Neville Smith
Subject: Request for HSR’s for Chandler Macleod ACT
Good afternoon Fabion,
I trust that my email finds you well.
Thank you for your email dated Monday 6 December requesting representation by a Health and Safety Representative.
You will soon receive communications, along with your colleagues in the ACT, providing information around the formation of Work Groups and HSR Nomination.
Should you wish to discuss the process at any time please do not hesitate to reach out to me on any of the below.
Kind Regards,
Brett Davis
Later that evening the applicant replied to Mr Davis as follows:
Thank you Brett, and nice to hear from you again.
I hope you can draw from the email chain below that this is entirely because Neville said there was some kind of unspecified safety issue, and I still do not understand what issue he was referring to. I look forward to discussing this with the elected HSR, or if it is me, discussing it with the PCBU’s representatives myself.
Cheers
Fabion
On 13 December 2021, Mr Deniese, Regional Manager, Chandler Macleod circulated an email to all ACT employees in the following terms:
Dear [mail merge workers first name here],
We have received a request to establish employee Health & Safety Representatives (HSRs) for Chandler Macleod ACT.
A Health and Safety Representative is a worker who volunteers to represent other workers where concerns or queries arise relating to their health and safety. An elected HSR for Chandler Macleod will play an active role in promoting health and safety and will be a point of contact for other Chandler Macleod employees should they wish to discuss a safety matter. Further information on the role of a HSR can be found here (Health and safety representatives and committees - WorkSafe ACT).
In ensuring we facilitate this request correctly it is important that we explain to you the required process, our thoughts on the best approach and allow you the opportunity to provide us with your input.
Step 1 - Establishing designated workgroups
There is a requirement prior to electing HSRs to ‘divide’ a business in logical groups called designated workgroups (DWGs) with an elected HSR for each DWG. Chandler Macleod ACT is made up of around 660 workers spread over 35 separate client work sites that on review fall into three distinct groups, and our recommendation is that these groups become our three designated workgroups:
• White Collar Professionals (Government Clients)
• White Collar Professionals (Non-Government Clients)
• Blue Collar Trades and Industrial
ACTION-It is a requirement of the legislation that Chandler Macleod consult on the Workgroups it creates. Should you have any feedback on the above proposed groups or have an alternate structure you would like to propose please advise by COB Friday 17 December 2021 to [REDACTED].
Step 2-Nominations for Health and Safety Representatives
Following agreement on a structure for DWGs we will email you shortly thereafter to seek nominations for the HSR (and deputy HSR*) for each DWG.
*The Deputy HSR performs the role of the HSR should the HSR not be available.
Step 3-Voting for the HSR
Once the HSR nominations have been received for each DWG we will email you a link to enable you to vote for the HSR for your DWG.
Kind regards,
Mario Deniese
Regional Manager, NSW/ACT
(First all-staff email)
One of the issues in this matter is whether this email, the first all-staff email, constitutes the ‘commencement of negotiations’ for the purposes of section 50(2)(b) of the WHS Act. The applicant says it does not.
Notwithstanding that the applicant did not consider the email to amount to the commencement of negotiations, he provided lengthy feedback to the proposal set out in the first all staff email. He suggested, amongst other things, alternative work group arrangements, and also requested information about working arrangements:
… I would propose that a single work group be formed for the AIHW covering all of the buildings within Canberra, and three HSRs and three deputy HSRs be elected to this work group. In this respect, and to facilitate reasonable consultation, can you please advise how many workers would be included in such a work group, and can you please advise which site addresses (i.e. buildings) these workers would be located at? In this respect, I do not have an interest in whether work groups are formed across all sites in the ACT - I simply am interested in an effective group being formed that would allow for safety issues in my actual work area to be addressed. For your purposes, you should consider this proposal as a model that could be applied to all of your government clients.
However if you do prefer to have three mega-groups, I would strongly suggest you would need to have approximately 20 HSRs and 20 deputy HSRs for each group, in order to have adequate coverage between sites.
At least two other employees also provided feedback. One employee was concerned that the proposed nomenclature (“white collar”/“blue collar”) was outdated, while another suggested that the work groups should specify retail and hospitality. Mr Deniese responded to both employees saying those concerns would be addressed.
Several employees, in addition to the applicant, nominated as potential HSRs.
On 24 December 2022, a further ‘all staff’ email advised of the proposed structure, and requested further feedback:
Dear _______
As you would be aware from my prior correspondence Chandler Macleod has received a requests to establish employee Health & Safety Representatives (HSRs) for Chandler Macleod ACT Thank you for considering the proposed Designated Work Groups for these representatives to cover, and to those who provided feedback to my prior email.
At the time we proposed three work groups incorporating:
• White Collar Professionals (Government Clients)
• White Collar Professionals (Non-Government Clients)
• Blue Collar Trades and Industrial
We have received numerous responses to this proposal, which we have been working through this week, and based on this feedback would like to again open consultation about how we establish these groups. In the prior consultation period we received feedback relating to:
• The use of the terms White and Blue Collar and their applicability to a modern workforce.
• Appropriately representing retail and hospitality professionals within the ‘White Collar’ termed groupings.
• That three Designated Work Groups may be insufficient to appropriately represent the ACT Employee group due to the amount of client locations a work group would cover.
Today I would like to invite further thoughts from our workforce to ensure that each of you feels appropriately represented. For your consideration I would like to provide the below information about our client locations within the ACT:
• Given the staffing and recruitment industry we work in, our client base fluctuates. The client base is usually between 30 and 60 client locations at any given time and at present we have approximately 660 workers.
• We have a very small industrial and trades presence with over 90% of our workforce from office based professional services industries.
• Just under half (47%) of our clients are located within the CBD with small numbers of clients withing Belconnen, Fyshwick, Tuggeranong and Woden.
We seek your recommendations on establishing appropriate groups to represent you. Items you may wish to consider should you wish to provide a response are:
• Do you have any thoughts on naming conventions, particularly contemporary terminology for White and Blue Collar industries, and recognition of retail and hospitality employee groups.
• Given the nature of work and risk profile of our workforce as outlined above would feel adequately represented by a HSR and deputy who potentially covers I 0-20 workplaces?
• If not, what coverage level would you feel appropriate for a Health and Safety Representative to cover?
• Would you like to see Work Groups established based on:
§Industry type of the work group
§Location specific representation E.g. divided by particular buildings, streets or city blocks
§Any other criteria
Should you have any thoughts on the above please email them to me at [REDACTED] Given the time of year and many of our workers being on leave consultation will be open for two weeks closing 7 January 2022, however if you require further time please do not hesitate to reach out.
Please be assured that, at any time, should you have a query about a safety issue or require the assistance of Chandler Macleod relating to a safety concern or event you can reach out to your Chandler Macleod representative, you can email [REDACTED] or alternately by phoning our office.
Yours Faithfully,
Mario Deniese
(Second all-staff email)
Following the second all-staff email Mr Deniese received a further two nominations from potential HSRs, and further feedback including from Mr Burke. That correspondence included the following two emails, the latter of which raises clear concerns about what Mr Burke saw as the inadequacy of the email consultation:
From: Fabion Burke
Sent: Monday, January 3, 2022 5:17:52 PM
To: Mario Deniese
Subject: Re: Health & Safety Representatives (HSRs) for Chandler Macleod ACT CMG:0520011
Hi Mario
You haven’t gotten back to me with the information I requested. If you don’t answer my questions, which were reasonable, then you will not have performed adequate consultation. I do not know why you have not responded to my email to you, and why you are effectively making consultation a oneway street.
If you ‘close’ consultation without allowing me an adequate opportunity to be consulted, with reasonable information provided to me pursuant to my earlier request, then I will exercise my workplace rights, inclusive of rights under the WHS Acts of the ACT and Cth in this regard.
Please get back to me with the information I have asked for urgently, and extend your timeframe for consultation until a reasonable time after the information is provided.
Thanks Fabion
From: Fabion Burke
Sent: Monday, January 3, 2022 5:30:08 PM
To: Mario Deniese
Subject: HSR Negotiations
Hi Mario I haven’t heard back from my earlier emails to you, so I wanted to reach out once more.
Work health and safety laws in Australia generally allow workers to request that negotiations commence to form work groups, from which health and safety representatives may be elected to represent them. These negotiations are required by statute to include the workers affected, and must broadly consider points including the specific work locations included, the number of workers, the jobs that people perform, special hazards peculiar to some workplaces, et cetera. The point is this - it is not possible for workers to commence negotiations until they are brought together in some way.
Currently you have purported to commence negotiations by way of consultation emails, which is an opaque process wherein you maintain complete control of the process, and you are able to decide which submissions are shared with other workers, or not. I noticed that you sent an email to the workers that included some of my views, but not others. This is not an acceptable means of negotiation, and is insufficient to satisfy the requirements of the work health and safety legislation as it applies to the Australian Capital Territory and the Commonwealth jurisdictions.
The position is that you need to commence genuine negotiations. This means providing either an in-person location where the workers or their representatives can meet and discuss the workplaces, needs of workers, proposed models for designated work groups; otherwise you need to provide something reasonably similar - perhaps by way of either an online forum, or sharing contact details of all other workers.
Will you allow negotiations to commence in the way I have described as above? If not, please let me know, as the next step for me will be to seek a mandatory injunction to require you to commence negotiations, under my standing as a person with a special interest in your compliance with the Acts. Please let me know soon, as time is of the essence and significant costs will be incurred by everyone if this is necessary. I understand you may need to seek approval from the board in Scandinavia so please make appropriate representations to them urgently.
Kind regards
Fabion
Mr Deniese responded on 6 January 2022, essentially advising that they would seek the guidance of Worksafe ACT (Worksafe) as to the appropriate process to be followed:
Good Morning Fabion,
Thank you for your email. Apologies for the lag in response, I am only back from the Christmas break today.
I do apologise if you feel that we haven’t answered your queries in the email back to the group, or represented your concerns in full to the worker group in the ACT. I am sure you understand the difficulties in providing information and inviting consultation given the nature of our constantly changing workforce and client base, as well as the commercial realities of publicly releasing full client lists rather than amalgamations of industries and locations prior to HSR election.
Given these challenges I have spoken with our safety team and following the consultation period this week we will be engaging with WorkSafe ACT directly to assist us with the consultation and election process. At this time we will be sharing all feedback obtained to date, including your own, for their consideration in guiding the process. We will be in touch as soon as possible after engaging the regulator and receiving their advice regarding how to proceed given our specific industry and worker types.
As always should you have any immediate safety concerns, or should you wish to discuss the above my team and I are available to you.
Kind Regards,
Mario Deniese
Following this exchange, Chandler Macleod sought the advice of Worksafe ACT, the administrative agency responsible for administering the WHS Act, as to how to conduct the consultation process. On 19 January 2022 it emailed a copy of the above correspondence to Worksafe and asked for advice on developing appropriate work groups and what data should be provided to employees as part of the process.
On 21 January 2022 Mr Beaver, a senior inspector with Worksafe, responded to the Chandler Macleod, stating, amongst other things:
WorkSafe ACT’s jurisdiction in relation to HSR’s covers a HSR’s actions (i.e. placing a PIN in a workplace) and the actions of PCBU’s in allowing access to a HSR network/work group within its organisation depending on its size and workforce. In reading the information below, Chandler Macleod appears to be making all reasonable efforts to establish a HSR network/work group and is therefore currently complying with its WHS Act 2011 obligations.
In relation to the dispute surrounding the formation of such a network, this falls outside the scope of WorkSafe ACT and is more likened to be an industrial relations dispute as to the election process. If the PCBU has an employment framework that includes the ability to access a HSR group, that would be an entitlement of the workforce under that employment framework which also would make it a Fair Work Ombudsman matter.
WorkSafe ACT has no jurisdiction in relation to IR maters, and in the ACT, that falls under the umbrella of the Fair Work Ombudsman. Further, as WorkSafe ACT has no jurisdiction, it would be unable to assist in mediating or advising on such IR concerns.
Mr Davies, on behalf of Chandler Macleod, then responded later that day, which read in part:
Are you able to please confirm for me the process if our negotiations fail?
I anticipate that despite our best efforts, and no other concerns or objections being raised by our workforce, that if we do not simply create the work groups requested by 1 employee then this will be escalated to your department by our employee under Section 54 of the WHS Act. For transparency I am also considering whether escalation under S54 is a proactive choice that we could make as an organisation to reach an appropriate outcome.
As I understand it, should either a worker or organisation raise a failure of negotiation an inspector will be appointed who will look at all evidence and make a decision on how the Work Groups must be formed. Is this correct?
Mr Beaver then responded:
Good afternoon Brett.
You are correct. If the negotiations fail, a referral pursuant to s.54 can be made and then that transverses into the Regulators jurisdiction. Please keep in mind that the Regulator would look at whether all reasonable steps between the parties have been pursued prior to a referral being made or an Inspector being appointed.
On 25 January 2022, Mr Deniese wrote to the applicant, as follows:
From: Mario Deniese
Sent: Tuesday, 25 January 2022 11:58 AM
To: Fabion Burke
Subject: RE: HSR Negotiations
Hi Fabion,
I wanted to circle back to you regarding the creation of work groups. We have sought advice from WorkSafe ACT & are committed to continue the creation of appropriate work groups. As such we will be seeking a more direct way of consulting with our workers in the ACT In the coming days we will be proposing effective ways to discuss work groups with our workers including the potential for a Town Hall style meeting. Once we have an understanding of attendees & interest we will look to appropriate means & potentially locations.
Regards,
Mario Deniese
Sometime days later, on 4 February 2022, the applicant sent an email response as follows:
From: Fabion Burke
Sent: Friday, 4 February 2022 at: 11:42 PM
To: Mario Deniese
Subject: Re: HSR Negotiations
Hi there Mario
Sounds good, and I hope you have had a restful new year. Please circle back to me and let me know when the conference is arranged, as I look forward to meeting with affected workers to discuss options for the work groups (and hoping to get it resolved as easily as possible for everyone).
Thanks Fabion.
Later, on 4 February 2022 Chandler Macleod sent a third all staff email to ACT employees advising them of a survey on the proposed work groups:
Good Morning All,
As you would be aware from my prior correspondence Chandler Macleod has received a request to establish employee Health & Safety Representatives (HSRs) for Chandler Macleod ACT Thank you for considering this previous correspondence, and to those who have provided feedback to date.
Today I am seeking your response to an amended proposal for Designated Work Groups following feedback received. If you could please take the time to answer the below short survey it would be greatly appreciated. The survey works effectively on both mobile and desktop devices. The survey will be open until Sunday 13 February 2022. Click Here
Yours Faithfully, Mario Deniese
(Third all-staff email)
While the tribunal does not have a copy of the survey, the respondent did file a copy of the results. Those results show that 88 persons voted in favour of the proposed work groups, and one person voted against. I do not have any information about what percentage of the total eligible workforce this represents. The person who voted ‘no’ gave extensive feedback, reiterating his concerns. That person was presumably the applicant, as the Chandler Macleod sent feedback to the applicant, effectively saying they did not intend hold an all staff meeting or negotiate the issue further:
From: Mario Deniese
Sent: Thursday, 3 March 2022 11:46 AM
To: Fabion Burke
Subject: RE: HSR Negotiations
Good Morning Fabion,
Thank you for your continued engagement with the HSR process. We have reviewed the results of the survey sent to all ACT workers and based on the overwhelming response of approval for the proposed Work Groups (>99%) do not believe that the plan to host a ‘Town Hall’ style meeting is now necessary.
With reference to your comments within the survey relating to making available a detailed listing of client locations and access to contact details of employee groups, we believe that the breakdown of number of client site locations and worker spread provided to all workers are sufficient for the purposes of determining work groups. We understand that you have sought a greater level of detail than has been provided, however for privacy and commercial reasons respectively the provision of contact details and detailed client listings are not items we are in a position to share. Additionally, it is not our belief that we would require 1-2 HSRs per site given the risk profile of our workforce. It is our belief that given the low level of risk within a group of white collar professionals that a HSR with a deputy could make themselves available to receive concerns from their work group, represent their work group to Chandler Macleod management and drive outcomes for the safety of the group they represent.
Later today we will be inviting nominations for HSR positions within these work groups. We will consider your prior note nominating yourself as a HSR as received. We look forward to progressing through the nomination and election phases and enacting the HSR groups within our ACT workforce.
Regards,
Mario Deniese.
On 3 March 2022 Mr Deniese sent a further all-staff email setting out the result of the vote and inviting further nominations for HSR and Deputy HSR. I do not need to extract that correspondence here.
On 8 March 2022 the applicant sent a response nominating himself for all HSR positions for which he was eligible, but reiterating his view that negotiations had not commenced:
From: Fabion Burke
Sent: Thursday, 3 March 202212:15 PM To: Mario Deniese Subject:
Re: HSR Negotiations
Hi Mario
Just confirming, I nominate myself for all HSR and deputy HSR positions that I am eligible to be elected into for any model of designated work groups that may me [sic] adopted.
However, I also note that negotiations have not yet commenced to determine what work groups are appropriate. Negotiations are required to commence within 14 days from my initial request, but sadly have not taken place to date and we are now in March the next year.
My understanding from your letter is that you intend to perform no negotiations whatsoever, and you intend to adopt a model of designated work groups that was designed by you without negotiating this with the workers. Further, you intend to create designated workgroups without even particularising which workplaces are subject to the agreement. Is my understanding correct on these points?
Please advise the best way to perform legal service on your corporation. In the alternative, service will be effected on the registered office.
Kind regards
Fabion
Later that day the appellant sent a further email, apparently in relation to a proposed meeting. He advised that he had appointed a representative, a solicitor named Mr Klievens, to represent him in the process:
From: Fabion Burke
Sent: Tuesday, 8 March 2022 10:26 PM
To: Neville Smith
Cc: [REDACTED]
Subject: Your request for a meeting
Hi Neville,
Good evening. I refer to your text message of 7 March 2022 requesting a telephone meeting.
I presume your contact is in relation to my request for negotiations to commence to determine work groups for the purposes of holding elections for health and safety representatives to be appointed. If this is not correct, please advise me by return email.
With respect to your request for a meeting, I would appreciate it if you can send through an agenda outlining what you wish to discuss. Further, if you could undertake to pay the fee of my solicitor who will be in attendance, as well as confirm that I will be paid my casual wages for the duration of the meeting, then we will be able to arrange a meeting at a mutually agreeable time.
Finally, although I believe this has been stated previously, I inform you that I have appointed Mr Mitchell Klievens as my representative for the HSR negotiations, who will participate alongside me and all workers who chose to participate, and/or the other representatives (inclusive of union representatives) within the negotiations when they commence.
I have carbon copied Mitchell into this correspondence, and would appreciate if you can carbon copy him into your reply.
Kind regards
Fabion
Mr Deniese responded to some matters as follows:
From: Mario Deniese
Sent: Tuesday, 15 March 2022 4:53 PM
To: Fabion Burke Subject:
RE: HSR Negotiations
Good Afternoon Fabion,
Thank you for your email. We accept your nomination for the work group “Professional Services - Government Clients”. To confirm it is the opinion of Chandler Macleod that negotiations on the formation of Designated Work Groups commenced within 14 days of the initial request for Health and Safety Representatives, and we look forward to the election and appointment of HSRs in the near future.
Regards, Mario
Mr Deniese did not address the other matters raised by Mr Burke, such as the request for a meeting or his request that Chandler Macleod pay his solicitor’s fees.
Chandler Macleod thereafter commenced the HSR election process.
Involvement of the Regulator
On 10 March 2022, the applicant informed the respondent of his belief that there had been a failure to commence negotiations. That email read, relevantly:
Dear Worksafe ACT team,
I am a worker within the Australian Capital Territory, and I have requested that negotiations commence to form a work group so I can have a HSR elected to represent me. I have initially requested this in 2021, and my employer has still not commenced negotiations; and now they have unilaterally determined work groups using a structure which I think is unworkable.
They have not complied with the requirements of the WHS Act, in failing to commence negotiations within 14 days and now by unilaterally imposing their preferred work groups instead of seeking agreement between workers and their representatives. My representative for negotiations reports he has not been contacted either.
When negotiations fail, or do not commence, the WHS Act allows for an inspector to step in and facilitate the negotiation. I ask that you do this, and exercise your power under the WHS Act to do so.
(The complaint)
The electronic records before the Tribunal indicate that the request was initially allocated to Worksafe employees Mr Mathieson and then Mr Beaver of the General Inspectorate Team, and then reallocated to a Mr Gary McGivern on 18 March 2022. The allocation was done through an electronic database. The allocation comment from Mr Beaver to Mr McGivern read: “Gary, appears the person wishes for an inspector to be appointed. Can you action please.”
On 29 March 2022 Mr McGivern allocated the case to Mr Alan Chipperfield.
Mr Chipperfield had previously been appointed as an “inspector” by the regulator under Division 9.1 of the WHS Act (Appointment of inspectors), section 156 of which provides:
156 Appointment of inspectors
The regulator may appoint any of the following as an inspector:
(a)a public servant;
(b)an employee of a public authority;
(c)the holder of a statutory office;
(d)a person who is appointed as an inspector under a corresponding WHS law;
(e)a person in a prescribed class of persons.
Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).
Accordingly, Mr Chipperfield had the functions and powers of an inspector under section 160 of the WHS Act:
60 Functions and powers of inspectors
An inspector has the following functions and powers under this Act:
(a)to provide information and advice about compliance with this Act;
(b)to assist in the resolution of—
(i)work health and safety issues at workplaces; and
(ii)issues related to access to a workplace by an assistant to a health and safety representative; and
(iii)issues related to the exercise or purported exercise of a right of entry under part 7 (Workplace entry by WHS entry permit‑holders);
(c)to review disputed provisional improvement notices;
(d)to require compliance with this Act through the issuing of notices;
(e)to investigate contraventions of this Act and assist in the prosecution of offences;
(f)to attend coronial inquests in relation to work‑related deaths and examine witnesses.
The applicant says that the allocation of Mr Chipperfield amounts to an “appointment of an inspector” for the purposes of section 54(1) of the WHS Act.[2]
[2] Applicant’s submissions at [65]
There was subsequent correspondence between the applicant and Mr Chipperfield. I do not know if the entirety of it is before the Tribunal. Perhaps most relevantly, there is correspondence dated 14 April 2022 in which the appellant reiterates his previously stated concerns about the “flawed” election process. He also suggests several compromises that he is prepared to make to resolve the matter.
During this period there was also correspondence between Mr Chipperfield and Chandler Macleod. As far as the information before the Tribunal goes, it appears that the first contact occurred on 28 March 2022, when Mr Chipperfield wrote to Mr Deniese as follows:
Mario
I have been provided your contact detail as the Regional Manager NSW/ACT for Chandler McLeod [sic] Recruitment the reason contacting you is Work Safe ACT has been notified in regards to Chandler McLeod [sic] receiving a request for the election of Health and Safety Representative and the formation of relevant work groups. I assume from the nature of your business there will be numerous employees in various roles and locations throughout the ACT and the work groups may be differing and diverse.
To ensure Chandler McLeod [sic] are meeting their legislative requirements and satisfy the requirements of the Work Health and Safety Act 2011 could you please provide relevant information regarding the process and a time frame when it is expected for elections to occur.
For your information I have included relevant sections of the Work Health and Safety Act 2011.
On 21 April 2022, Mr Chipperfield advised the applicant that:
A request has been sent for representatives from Chandler McLeod to attend the Worksafe ACT office next week i.e. 26-29 April to discuss the process of the election of HSRs and formation of Work Groups to ensure they are familiar with their legislative requirements. Once the meeting has been held I will provide further feedback.
Meanwhile, correspondence continued between Mr Deniese and the applicant and other employees about the process for the election of HSRs to the “Professional Services - Government Clients” work group, of which the applicant was a member. Amongst other things, the applicant was requested to provide a “blurb” (an electoral pitch) to be sent out with the list of candidates.
The applicant initially participated in this process, but on 31 March 2022 he advised Mr Deniese that him “did not feel safe” communicating with him and asked for another contact. On 1 April 2022 Mr Klievens sent an email to Mr Deniese. Mr Deniese responded that as Mr Kievens was appointed “after negotiations had finished and agreement had been reached” he did not intend to enter further correspondence with Mr Klievens.
The applicant prepared a blurb for the election that set out his experience and suitability, but was also broadly critical of the process.
On 1 April 2022, Chandler Macleod advised the applicant that they did not accept the blurb written by applicant and that they would publish an edited version of it with the list of candidates.
On 5 April 2022, the applicant advised Chandler Macleod not to publish the ballot with the revised blurb. Nonetheless on 5 April 2022 Chandler Macleod sent a link to a website to allow members of the Professional Services – Government Clients group to vote.
The applicant contends that during a discussion with Mr Chipperfield on 8 April 2022, Mr Chipperfield said he would talk to the employer to “set them straight”. It is unclear what action Mr Chipperfield took after this conversation.
The results of the HSR election were announced on 14 April 2022. The HSR and Deputy HSR were elected by considerable margins. The applicant received one vote.
The applicant demanded a re-election, citing the edited blurb as a reason. Chandler Mcleod refused this request.
On 21 April 2022 Mr Chipperfield wrote to Mr Davis and as follows:
Subject: FW: Election of Health and Safety Representatives-HSR’s and Formation of Work Groups
OFFICIAL
Brett/Mario
As you may be aware from previous correspondence Work Safe ACT has been contacted in regards to concerns that the process for the election of Health and Safety Representatives and formation of Work Groups that fall within the control of Chandler McLeod [sic] and to date the information initially requested was provided.
Please be advised Work Safe ACT has now been contacted with concerns that the process of the formation of the Work Groups and election of HSRs may not be accordance with the Work Health and Safety Act 2011 a request has been made that the regulator appoint an inspector under Work Health and Safety Act 2011 Section 54(1) Failure of Negotiations for the purpose of the section.
Concerns have been raised that Chandler McLeod [sic] may not be meeting the requirements and intent of the legislation and the process for election of HSR ‘s and formation of the Work Groups and accordingly as the appointed inspector to clarify the process I am requesting a meeting be held with representatives from Work Safe ACT and Chandler Macleod to discuss the matter
Could you please be able to provide the following information to assist with my inquiries;
• Total number of workers engaged by Chandler McLeod [sic] within the ACT
• Number of workplaces and number of workers in each workplace
• Number of workgroups and type of groups.
Once a time has been provided I will send an invite for the meeting.
On 21 April 2022 the applicant sought to evoke his right to commence negotiations for a variation of the agreement to ensure two HSRs at his worksite. On 22 April 2022, he asked that negotiations commence with his representative, Mr Klievans.
On 9 May 2022 Mr Chipperfield emailed the appellant to advise that in his view the intent of the legislation was being implemented and met accordingly:
Hello Fabion
As you may be aware on Friday ie 29 April 2022 a meeting was held between Worksafe ACT and representatives from Chandler McLeod [sic] to discuss concerns raised about the election process of Health and Safety Representatives and the formation and consultation arrangements regarding Work Groups as a request was made for the Regulator to appoint an inspector to facilitate for further discussion.
From speaking to the representatives from Chandler McLeod [sic] and reviewing all information provided and taking into account concerns raised and being informed by Chandler McLeod [sic] that a request was made for a variation to the agreement which is will include consultation with the nominated employee representative.
Worksafe ACT has formed the belief and is satisfied the intent of legislation is being implemented and met accordingly and additional information and advice was provided for future reference to the Chandler McLeod [sic] representatives, should there be any further concerns with the ongoing process please feel free to contact our office.
Regards Alan Chipperfield - Inspector
(Original decision)
On 9 May 2022 the appellant requested an internal review of the original decision.
Internal review
Section 223 of the WHS Act sets out which decisions are reviewable. Table 223 provides, relevantly, that:
Table 223 Reviewable decisions and eligible persons
column 1
item
column 2
provision under which reviewable decision is made
column 3
eligible person in relation to reviewable decision
1
S 54(2)
(decision following failure to commence negotiations)
(1) A worker whose interests are affected by the decision or his or her representative appointed for the purpose of s 52 (1) (b)
(2) A person conducting a business or undertaking whose interests are affected by the decision.
(3) A health and safety representative who represents a worker whose interests are affected by the decision.
I note that column 2 refers only to a “decision following failure to commence negotiations”, rather than a “failure of negotiations”, which are different concepts.[3] However, the distinction is not determinative in this case.
[3] See section 54(3)(a) regarding failure to commencement negotiations as compared to section 54(3)(b)
Section 224 of WHS Act sets out how an application for internal review can made, including that it must be made within 14 days of the reviewable decision.
Section 225 provides that the regulator may appoint a person or body to undertake a review of a reviewable decision:
225 Internal reviewer
(1) The regulator may appoint a person or body to review decisions on applications under this division.
(2) The person who made the decision cannot be an internal reviewer in relation to that decision.
Sections 226 and 227 then set out the process as follows:
226 Decision of internal reviewer
(1) The internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received.
(2) The decision may be—
(a)to confirm or vary the reviewable decision; or
(b)to set aside the reviewable decision and substitute another decision that the internal reviewer considers appropriate.
(3) If the internal reviewer seeks further information from the applicant, the 14‑day period ceases to run until the applicant provides the information to the internal reviewer.
(4) The applicant must provide the further information within the time (being not less than 7 days) specified by the internal reviewer in the request for information.
(5) If the applicant does not provide the further information within the required time, the decision is taken to have been confirmed by the internal reviewer at the end of the required time.
(6) If the reviewable decision is not varied or set aside within the 14‑day period, the decision is taken to have been confirmed by the internal reviewer.
227 Decision on internal review
As soon as practicable after reviewing the decision, the internal reviewer must give the applicant in writing—
(a) the decision on the internal review; and
(b) the reasons for the decision.
In his request for internal review of the decision of the original decision the applicant wrote:
The list of reviewable decisions is in section 223 of the WHS Act. The first item in the table is the provision under which the decision of Mr Chipperfield, Mr McGivern and Mr Alford was made.
Section 226(6) of the WHS Act provides that if the reviewable decision is not varied or set aside within the 14-day period, the decision is taken to have been confirmed by the internal reviewer. It was not completed until 26 May 2022, and therefore to the extent that there was a decision under section 54, that decision is taken to be confirmed.
Importantly, in this request the applicant asserted that the original decision was “a decision under section 54”. As only decisions under section 54(2) are reviewable, it appears he is asserting it was a decision under section 54(2). The respondent appears to have accepted as much, or at least did not question the assertion at this time. Rather, the internal review appears to have been allocated to Mr Davis by way of internal processes on or about 17 May 2022 and he commenced the internal review.
In a decision letter dated 26 May 2022 Mr Davis wrote to the applicant, advising of his decision:
The Decision:
Is to confirm Inspector Chipperfield’s decision made under section 54(2) of the WHS Act that the negotiations had not failed and the PCBU was meeting the intent of the legislation.
(the Davis decision)
The letter then set out what it said are the appellant’s external review rights:
Pursuant to section 229 of the Work Health and Safety Act 2011 an eligible person may apply to the tribunal for review of a decision made, or taken to me made, on an internal review. Section 22 of the WHS Act prescribes reviewable decisions. Section 223, Table 223, Item 1 provides that a decision pursuant to subsection 54(2) “Decision Following Failure to Commence Negotiations” is a reviewable decision.
The electronic database records[4] suggests this decision was made on 26 May 2022, which is the date on the Davis decision. This was after the expiration of the 14-day period provided for by section 226(1), meaning that if Mr Chipperfield’s decision had been a decision under section 54(2), it would already have been taken to be confirmed prior to Mr Davis making his decision.
[4] Attached to the applicant’s submissions
The applicant lodged an application for external review of the Davis decision in the tribunal, pursuant to section 229. This section provides:
229 Application for external review
(1) An eligible person may apply to the ACAT for review (an external review) of—
(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 ACAT to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.
The respondent’s application to strike out the proceedings
On 23 June 2022 the respondent filed an application for interim or other orders seeking to strike out the application:
...for want of jurisdiction as there is no authorising law that provides that an application may be made see section 9 of the ACT Civil and Administrative Tribunal Act 2008.
(strike-out application)
Section 9 of the ACAT Act provides that person may apply to the tribunal if an authorising law provides that the application may be made.
In the strike-out application the respondent submitted that:
In this matter, no decision pursuant to subsection 54(2) has been made. The decision that has [been] made is that there was not a failure of negotiations to enliven the appointment power for an Inspector of the [Respondent] to be appointed to decide the matters in section 52(3) of the WHS Act or any of those matters which is the subject of the proposition variation; or that work groups should not be determined or that the agreement should not be varied.
Subsection 52(3) provides that there is a failure of negotiations if a person conducting the business or undertaking (PCBU) has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14 days after the day a request if made for the election of [HSRs] or a variation to the agreed work group. In the alternative, a failure of negotiation occurs where agreement cannot be reached on a matter relating to the determination of a work group (or variation of an agreement concerning a work group) within a reasonable time after negotiations commence. On review of the evidence, [Mr Davis] was not satisfied there had been a failure of negotiations.
Accordingly, the respondent submits that no decision pursuant to subsection 54(2) of the WHS Act was made as the respondent never appointed Mr Chipperfield as an inspector to decide any of the matters in section 52(2), and nor did Mr Chipperfield decide any of those matters. Rather, the only decision Mr Chipperfield made was that there was no failure of negotiations. If accepted, this would be that there is no ‘reviewable decision’ for the purposes of section 9 of the ACAT Act. On this basis it seeks that the application for review be struck out as the tribunal lacks jurisdiction.
As an alternative, the respondent submits that, in any case, Chandler Macleod had taken “all reasonable steps” to commence negotiations, did so within time, and the process has resulted in agreed work groups and the election of HSRs.
The applicant’s submissions in response to the strike out application
The applicant says that the PCBU did not take “all reasonable steps” to commence negotiations. He submits that reasonable steps would include a “Zoom” or “Teams” meeting, or town hall meeting or similar conference, but there was was no meeting and no conference or face to face discussion at all.
The applicant also submits that negotiations did not commence within 14-days of his request, because the first all staff email should not be taken to be the commencement of negotiations.
Further, he says, no agreement has been reached on any matters relating to the determination of any work group. Because negotiations had not been commenced, and agreement not reached in a reasonable time, there was a failure of negotiations pursuant to the definition of that term in section 54(3) of the WHS Act.
On the issue of whether Mr Chipperfield was appointed as an ‘inspector’ for the purposes of section 54, the applicant says that it was not the intention of the legislature that appointments under section 54 be made in compliance with the Legislation Act 2001 (the Legislation Act). All that was required was the assignment of the matter to a person already appointed as an inspector under section 156 of the WHS Act.
The applicant also submits that section 54 does not require the regulator to be satisfied of a failure of negotiations:
... section 54 is intended to describe a process. The process can be summarised as follows:
a. If a failure of negotiations occurs, an affected person contacts the regulator to ask for an inspector to be appointed to decide the matter.
b. The regulator selects an inspector, and ‘appoints’ them. The word ‘appoint’ does not mean a statutory appointment in accordance with the Legislation Act 2001 (ACT). It means the normal everyday meaning of the word, which means ‘assign a job or role to (someone)’.
c. The selected inspector makes reasonable enquiries and makes a decision. This decision is a reviewable decision.
d. The decision takes effect as if it was an agreement between the parties.
What is fairly clear is that section 54(1) of the WHS Act is a description of a process. It sets out who may ask for an inspector to be appointed. It does not require the regulator to be satisfied of anything.[5]
(emphasis added)
[5] Applicant’s submission
Further, the applicant says:
Section 54(1) empowers particular persons to make a request to the regulator. It does not empower the regulator to do anything other than to select an inspector to look into the matter ... It presupposes that an inspector will be appointed, to make the section workable.
Section 54(1) uses the word ‘appoint’. Section 54(2) uses the word ‘appointed’. These usages of the word ‘appoint’ do not come with a note referring to the Legislation Act 2001 (ACT). It was apparently intended to take its usual and ordinary meaning, which simply means to assign a job or role to someone. This is consistent with the purpose of the section, which is to have a single chosen inspector investigate and consider particular matters and then make a reviewable decision.
Then:
...on 29 March 2022 at 12:28 pm, Gary McGivern appointed Alan Chipperfield as the ‘Case Owner’. This is a written document. It does not expressly state the terms of the appointment, but it is clear from the context of ‘Can you action please’ and ‘the person wishes for an inspector to be appointed’ that the assignment was in fact, an appointment of the inspector named Alan Chipperfield as the appointed inspector for the purposes of section 54 of the WHS Act.[6]
[6] Applicant’s submissions at [65]
Finally, the applicant contends that there was, in substance, a failure of negotiations. He points in particular to the respondent’s failure to address some of his concerns.
Consideration
Before considering the substance of this matter, it is useful to set out what the tribunal’s powers are in this, its review jurisdiction.
The starting point is that the tribunal's jurisdiction is conferred solely by legislation.[7] If there is no conferral of power in relation to a particular decision, a right of review does not lie with this tribunal.
[7] ACT Civil and Administrative Tribunal Act 2008 section 9
In the case of the WHS Act, section 223 and Table 223 set out those decisions that are reviewable. For the purposes of these proceedings, the only relevant reviewable decision is a decision made under section 54(2) – described as a “decision following failure to commence negotiations.”[8] An application for review may be made by a worker whose interests are affected[9] or by his or her representative appointed under section 52(1)(b) of the WHS Act. It is not in contest that, if the Davis decision is reviewable, the applicant is a “person whose interests are affected.”
[8] I note again the comments at paragraph 67 of these reasons re the referral to the “failure to commence negotiations” rather than “failure of negotiations” in the section 223.
[9] Work Health and Safety Act 2011 section 223(1)(b) (Item 1)
I note, as a matter of completeness, the person who makes the request for the appointment off HSRs under section 50 of WHS Act and the person who makes the request for the appointment of an inspector under section 54(1)[10] may well be different entities, but in this case the applicant is both.
[10] See NSW Wales Fire Service v SafeWork NSW [2016] NSWIRComm 4 at [50]
If a matter is reviewable by the tribunal, then section 67A of the ACAT Act requires that the decision maker take reasonable steps to give written notice to any person whose interests are affected. Section 7 of the ACT Civil and Administrative Tribunal Regulation 2009 sets out further requirements, including a requirement that the affected person be advised that they may apply to the tribunal for a review of the decision.
Section 68 of the ACAT Act then sets out the powers available to the Tribunal when determining an application for a review of an administrative decision. The Tribunal can affirm or vary a decision, set it aside and substitute a decision, or remit it back to the decision-maker. In broad terms, the Tribunal is said to ‘stand in the shoes of the decision maker’ in that is considers the issues de novo or afresh[11] and determines what it considers to be the ‘correct and preferable’ decision based on the material before it.[12]
[11] Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41, Smithers J at 46
[12] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, 424-425
As set out above, decisions made under section 54(2) of the WHS Act do not go straight to the tribunal. Instead, the WHS Act sets out an internal review process that must be followed. Section 224 of the WHS Act requires that the eligible person “apply to the regulator for review of the decision” within 14-days of receiving the decision. Section 225(1) than provides that the regulator “may” appoint a person or body to review the decision. As was observed by Kite AJ in NSW Rural Fire Service v SafeWork NSW this ‘may’ perhaps means ‘must’, but there does not appear to be any restraint on who may be appointed for this purpose “apart from an inference which might arise from the use of the word ‘internal’, that the reviewer be a person employed by, or otherwise associated with, the regulator.”[13]
[13] [2016] NSWIRComm 4 at [54]
Under section 226 the internal reviewer may confirm, vary or set the decision aside and substitute a new decision. Subsection 226(6) provides that if the reviewable decision is not varied or set aside within the 14‑day period, the decision is taken to have been confirmed by the internal reviewer. Section 227 then requires that “as soon as possible after reviewing the decision” the internal reviewer must give the applicant written reasons. Section 229 provides that an “eligible person” may apply to the tribunal for the review of a decision made by the regulator or a decision made, or taken to be made, on internal review. Therefore, it is the decision made on internal review that is the reviewable decision.
By the operation of law, if Mr Chipperfield’s decision[14] was a decision under section 54(2) of the WHS, it was taken to have been confirmed on internal review because the review was not completed within a 14-day period. This happened before Mr Davis purported to “confirm Inspector Chipperfield’s decision made under section 54(2) of the WHS Act that the negotiations had not failed and the PCBU was meeting the intent of the legislation.” That raises some questions about the status of the reasons provided by Mr Davis, given that if Chipperfield’s decision was reviewable, then it had already been affirmed at law before Mr Davis made his decision or determined his reasons. Ultimately, however, this issue does not need to be considered further for reasons that will shortly be apparent.
[14] Attachment C; email of Matt Davis to Fabion Burke dated 19 May 2022
As noted above, the respondent’s position is that Mr Chipperfield in fact never made a decision under section 54(2) of the WHS Act. What he did, the respondent says, was to consider whether there had been a failure of negotiations under section 54(1). When he concluded there had not been, the matter went no further. Accordingly, there is no internally reviewable decision capable of being taken to confirmed by operation of section 226(6) of the WHS Act, nor any basis for Mr Davis to purport to undertake an internal review.
What does this all mean for the matter before it, including the Davis decision, which certainly purports to be a reviewable decision?
As a general rule, no matter how defective an administrative decision may appear to be, it remains good in law unless and until it is declared to be invalid by a court of competent jurisdiction.[15] The Tribunal has no power to make declarations of invalidity. The Tribunal must also be careful to avoid impermissible “collateral reviews” of matters that fall outside its jurisdiction, as to do so would be contrary to the principles of quick and efficient justice.[16] This means it will not usually ‘go behind’ a decision to determine whether processes that are not under review were followed[17] or other Acts were complied with.[18]
[15] See R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26, page 33
[16] Director of Housing v Sudi [2011] VSCA 266
[17] Eg. XY v Director general, Education Director [2018] ACAT 68 regarding the internal processes leading up to a decision by a school
[18] Eg. Commissioner for Social Housing in the ACT & Massey [2013] ACAT 41 regarding compliance with obligations under the Human Rights Act 2005
However, it is not the case that all inquiries in a collateral review are inappropriate. As was observed by Member Daniel (as she then was) in Commissioner for Social Housing in the ACT & Massey:
It is not the case that all inquiries in the nature of a collateral review are inappropriate. Some are provided for legislatively. Even where there is no specific legislative provision, it may be permissible to engage in consideration of ancillary matters, provided the issue of concern is of direct relevance to the proceedings, it is considered appropriate for that body to engage in that inquiry, and within the jurisdiction of the body undertaking the inquiry. In the latter case, the jurisdiction to make orders as a consequence of that review is consequential upon the finding that the review is appropriate.
The question of availability and extent of collateral review in any particular case is not easily resolved. It is first a question of statutory interpretation.[19]
[19] Commissioner for Social Housing in the ACT & Massey [2013] ACAT 41 at [46] – [47]
In other words, it may be permissible for that body to engage in that inquiry, provided it is directly relevant to proceedings and within the jurisdiction of the body undertaking the inquiry.
In my view, the complex background to this matter and the uncertainty over what is even an operative decision mean this is one situation where it is appropriate to look behind the purported externally reviewable decision, because in this case the question is not one of validity of an apparent administrative decision, but rather whether there is a reviewable decision at all, a conclusion that can be drawn by reference to provisions of the WHS Act directly relevant to this dispute.
The key question is whether there was ever a decision under section 54(2).
Unfortunately, there is no evidence before me from Mr Chipperfield setting out what he understood himself to be doing, nor any document from the respondent setting out what it had understood it had authorised Mr Chipperfield to do. Nonetheless, what happened is tolerably clear on the evidence.
The respondent received both a request for assistance from Chandler Macleod and then a complaint from the applicant. An internal process took place where Mr Beaver was allocated the applicant’s complaint. He then allocated it to Mr McGivern, noting the “request to have an inspector appointed”. Mr McGivern subsequently referred the file to Mr Chipperfield, who also appears to have been allocated the respondent’s request for assistance. All these allocations occurred by way of the file being electronically transferred from one employee or officer of Worksafe to another. There is no record of any person being expressly ‘appointed’ to be an inspector for the purposes of section 54(2). The question is whether this happened impliedly by the allocation process or otherwise by operation of law.
Two questions arise here – first, a legal question as to what is meant by ‘appoint’ in this context, and then a factual question as to whether an inspector was appointed.
The Legislation Act deals with ‘appointments’ in part 19.3. Relevantly, sections 205 and 206 of the Legislation Act provide:
205 Application—div 19.3.1
This division applies if a law authorises or requires an entity (the appointer) to appoint a person—
(a)to a position under a law; or
(b)to exercise a function or do anything else under a law.
206 Appointments must be in writing etc
(1)An appointment must be made, or evidenced, by writing (the instrument of appointment) signed by the appointer.
(2)If a law provides for a maximum or minimum period of appointment, the instrument of appointment must state the period for which the appointment is made.
There was some discussion at the hearing and in the parties’ submissions as to whether an ‘appointment’ of an inspector under section 54(1) needed to be in accordance with section 206(1) of the Legislation Act, meaning that an appointment would need to be in writing.
Section 206 of the Legislation Act is a non-determinative provision, which means it may be displaced, whether expressly or by contrary intention. There is a general statutory presumption that words used in legislation are used consistently[20], but this too is readily rebuttable where a contrary intention is evident.[21]
[20] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452
[21] Commissioner of Taxes (Vic) v Lennon (1921) 9 CLR 579 at 590 per Higgins J
The applicant says that such a contrary intention is evidenced by the fact some sections of the WHS Act referring to ‘appointments’ have ‘notes’ expressly referring to section 206 of the Legislation Act (e.g. section 156 of WHS Act), while others, including section 54(1) do not. This, the applicant submits, along with issues of practicality suggest that for the purposes of section 54(1) the ordinary meaning of the word should apply.
Having regard to the non-legislative context of the WHS Act[22], it is possible that the use of ‘appoint’ in section 54(1) is a legacy of the inter-jurisdictional drafting, such that its use in section 54(1) may be more a reference to an ‘assignment’ rather than a formal appointment. This may explain why the ‘note’ about section 206 of the Legislation Act is included in, for example, section 156 and not section 54(1).
[22] Legislation Act 2001 sections 141-142
However, against that possibility I need to weigh the serious powers that may be exercised by an inspector under section 54(2), and where those powers sit in the context of the WHS Act.[23]
[23] Work Health and Safety Act 2011 section 140
An inspector, when appointed, is empowered[24] to decide:
(a)the number and composition of work groups to be represented by health and safety representatives;
(b)the number of health and safety representatives and deputy health and safety representatives (if any) to be elected;
(c)the workplace or workplaces to which the work groups will apply; or
(d)that work groups should not be determined or that the agreement not varied.
[24] WHS Act section 54(3), 52(3)
The Explanatory Memorandum to the Model Bill provides that the purpose of these provisions is as follows:
Subclause 54(2) empowers the inspector to decide on the relevant matters (referred to in subclause 52(3) or any matter that is the subject of the proposed variation (as the case requires)) or to decide that work groups should not be established or that the agreement should not be varied (as the case requires). In exercising this discretion, the inspector must have regard to the relevant parts of the Bill, including the objects of the Part and the Bill overall.
Subclause 54(4) provides that the inspector’s decision is taken to be an agreement under clause 52. This means that that the inspector’s decision operates for all purposes as if it had been agreed between the relevant parties.
These powers allow an inspector to impose upon a workplace health and safety arrangements that would otherwise be determined in the workplace by consultative processes. It would be surprising if an inspector were ‘appointed’ to exercise these powers without there being the usual administrative law requirement of a record of the appointment, consistent with usual processes as set out under the Legislation Act.
I also note that, as a matter of statutory interpretation, a note is not generally[25] considered part of an Act.[26] I am not satisfied that a note should be used as an interpretative tool in the way suggested by the applicant.
[25] Section 127(1) is a “determinative provision” and is not intended to be displaced save by “a more deliberate displacement” than “a contrary intention”. Rather, it must be either an “express” or a “manifest contrary intention” (see s 6 Legislation Act).
[26] Legislation Act 2001 section 127(1)
However, let us assume for a moment that section 206 of the Legislation Act does not apply and ‘appoint’ has its ordinary meaning for the purposes of section 54(2).
The Macquarie Dictionary defines ‘appoint’ to mean, relevantly: “verb (t) to nominate or assign to a position, or to perform a function.” A ‘verb’ is a word that expresses the occurrence of an action or existence of a state. In this case, the applicant’s right is to “ask the regulator to appoint an inspector.” Although not expressly stated, the implication is that the regulator must then take some step to action that request and appoint a person as an inspector. A nomination or assignment is not something that occurs passively.
The best evidence I have before me of what actually happened is an email from Mr Beaver to Mr Davis of 21 January 2022. This email confirms that the regulator’s usual practice distinguishes between considering the request and appointing an investigator:
…the Regulator would look at whether all reasonable steps between the parties have been pursued prior to a referral being made or an inspector being appointed.[27]
[27] See above at [34]
While note conclusive, the electronic allocation trail filed by the applicant is consistent with this approach, being that Mr Chipperfield was allocated to consider whether there had been a failure to negotiate, as a preliminary step to an ‘appointment’ under section 54(1).
Of some greater weight is Mr Chipperfield’s decision letter. It is but three paragraphs long. It confirms Mr Chipperfield’s view that “the intention of the legislation is being implemented and met.” At no point in the decision letter does he claim to have made a decision under section 54(2) of the WHS Act or indeed exercised any power under that section. His conclusion was that the respondent was acting according to law. While not expressly stated, having regard the characterisation of the applicant’s complaint on the system (a “request to have an inspector appointed”) the only reasonable implication is that Mr Chipperfield did not consider any further action, including the appointment of an inspector, to be necessary at all.
The applicant argues further that a formal appointment is not in any case necessary because it happens by way of operation of law, upon the request of an interested party:
With respect, section 51(1) of the WHS Act does not require the regulator to be satisfied of a failure of negotiations.
The proposition that any decision can ever be made under section 54(1) is inconsistent with the purpose of the Act. The WHS Act intended for an inspector’s decision made under section 54 to be reviewable. The WHS Act did not contemplate any decision being made under section 54 except for a reviewable decision.
... it would be absurd is a decision could be made under section 54(1) that there was no failure of negotiations, and therefore no inspector should be appointed.
I do not accept this submission. The opening words to section 54(1) are “if there is a failure of negotiations.” The word ‘if’ is a conjunction used when introducing a conditional clause. The condition in this case is a ‘failure of negotiations.’ If there is no failure to negotiate, then a factual precondition that underlies the exercise of power under section 54(1) is not established.
It is interesting that, although Part 5 of the WHS Act has a collective focus, emphasising consultation and negotiation, an individual has the right to seek review of, at the least, a “failure to commence negotiations” and argument also a “failure of negotiations”. Hence, the review may well be, as here, be sought by disgruntled individual, even in circumstances where the collective agrees.
However, that right is clearly tempered by the requirement that the negotiations either fail to commence within the required time, or ‘fail’ more generally. This requirement prevents an individual from interrupting a process that is otherwise successful. Pursuant to section 54(3) there is a failure of negotiations where the PCBU:
(a)has not taken all reasonable steps to commence negotiations with the workers and negotiations have not commenced within 14-days of the request (section 54(3)(a)); or
(b)agreement cannot be reached on a matter relating to the determination of a work group (or the variation of an agreement concerning a work group) within a reasonable time after negotiations commence (section 54(3)(b)).
Consistent with this, it seems that the purpose of the internal and external review provisions is to ensure that where an inspector does step in and impose a certain outcome, there is a right of review available to a party who is affected by a decision of the investigator about the work groups. It is this decision made by an inspector in relation to work groups, representatives or workplaces, that is imposed on the PCBU, and which affects the workers, that is the reviewable decision, not the decision of the Commissioner to appoint someone as an investigator to make it.
As such, I am satisfied that in order for section 54(2) to operate:
(a)an eligible person may request the regulator to appoint an inspector;
(b)the regulator must appoint an inspector; and
(c)the inspector must exercise the power to decide a matter according to section 54(2), which may include the making of a decision that work groups should not be determined.
I am satisfied that in the circumstances, no decision was made by an investigator under section 54(2) there is nothing that the Tribunal may review.
In summary, therefore, there is no material before me that would lead me to the conclusion that Mr Chipperfield was appointed as an inspector for the purposes of section 54(1) or that he made any decision under section 54(2). Indeed, I am satisfied that Mr Chipperfield was not appointed as an inspector for the purposes of section 54(1), and in any case never exercised or purported to exercise any powers under section 54(2). Accordingly, I am satisfied that there was no “internally reviewable decision” for the purposes of section 224. This means that there is no deemed decision pursuant to section 226(6) of the WHS Act, and it was not open to Mr Davis to conduct the internal review.
The language in the external review notification letter that followed the external review is unfortunate – the letter should have stated that there was no decision under section 54(2), rather than purporting to confirm a decision made under that section. This is misleading and inaccurate. However, none of this changes the legal situation which confers upon the Tribunal a jurisdiction it does not have to review a decision that was never made.
Likely, the applicant will find this harsh. However, he is not without remedies. Other administrative law remedies are available where a person wishes to compel a public official to perform statutory duties that the official is derelict in performing, but merits review is not one of those remedies.
Other matters – was there a failure to commence negotiations?
I note for completeness, that even if I am wrong on this, and both the original decision and the internal review decision are valid such that the tribunal has jurisdiction to undertake a review of the latter.
Stated briefly, I am satisfied that the PCBU did not fail to commence negotiations within the prescribed time, because within 14-days of receipt of the applicant’s request, it sent out a letter to staff proposing work groups and inviting consultation. The applicant has failed to identify any problem with this letter.
Nowhere in the legislation or the regulations is there are requirement that an employer convene a ‘town hall’ or other face to face or virtual meeting in order to commence negotiations.
I am also satisfied that there was no failure of negotiations more broadly:
(a)Employees offered feedback and the PCBU took this onboard and consulted again, seeking further information.
(b)The PCBU sought advice from the Commissioner about the process.
(c)The PCBU consulted with employees about whether to hold a meeting.
(d)The PCBU informed the employees about the work groups.
(e)The PCBU held elections for the positions of HSRs for the applicant’s work group.
(f)The applicant stood in those elections and was unsuccessful (obtaining only one vote).
(g)The PCBU has since appointed the elected individuals as HSR and Deputy HSR for the applicant’s work group.
That the applicant feels aggrieved by the process adopted is unfortunate. He may well be correct that there could be a better model. However, the test is not whether negotiations could be better, but whether they “failed”. Worksafe properly concluded that negotiations were commenced. They proceeded and were successful in the election and appointment of HSRs in an election in which many employees participated. Clearly, negotiations did not fail. To suggest otherwise is an argument that is doomed to fail. Accordingly, I am not satisfied that regulator even had the power to appoint an inspector.
However, even if Mr Chipperfield was appointed an inspector for the purposes of section 54, and hence was entitled exercise power under section 54(2), and did so when he made the original decision and decided to take no further action, it is difficult to see, having regard to the largely uncontested factual material and the results of the survey and the election, how any decision made by this Tribunal would be other than in accordance with the wishes of the employees as expressed in that process. Hence, even if one could characterise Mr Chipperfield’s decision were a decision under section 54(2) and a decision that work groups should not be determined, that decision is quite plainly the correct and preferable decision, because those work groups have already been determined and approved by the vast majority of workers who participated in the process.
Summary
In the absence of a decision under section 54(2), the Tribunal has no jurisdiction to review Worksafe’s decision not to get involved in this process. However, even if the Tribunal were able to review the decision, the Tribunal would be satisfied that negotiations did not fail and accordingly the correct and preferable decision is that the decision under review be confirmed.
………………………………..
Presidential Member H Robinson
| Date(s) of hearing: | 4 July 2022 |
| Applicant: | In person |
| Respondent: | Georgia Junakovic, ACT Government Solicitor |
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