Chiswell and Australian Capital Territory (Compensation)

[2023] AATA 855

Chiswell and Australian Capital Territory (Compensation) [2023] AATA 855 (21 April 2023)

Division:GENERAL DIVISION

File Number(s):      2021/7267

Re:Chiswell

APPLICANT

Australian Capital TerritoryAnd  

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan 

Date:21 April 2023

Place:Canberra

The application by the United Firefighters Union of Australia to be joined is dismissed.

………….[SGD]……………

Senior Member O'Donovan 

CATCHWORDS

PRACTICE AND PROCEDURE - application to be joined as a party - whether the joinder applicant has interests in the decision under review - whether Tribunal's discretion should be exercised to join joinder application as a party to the proceeding - application to be joined as a party refused

LEGISLATION

Administrative Appeals Tribunal Act 1975, ss 30(1A)

Safety, Rehabilitation and Compensation Act 1988, ss 7(8), 7(9)

CASES

Re Maunsell & Partners Pty Ltd and Maunsell Consultants and Export Development Grants Board (1980) 2 ALD 813

Re C and Collector of Customs (NSW) (1983) 5 ALN N222

REASONS FOR DECISION

Senior Member O'Donovan

21 April 2023

1. The United Firefighters Union of Australia has applied to be made a party to these proceedings. The United Firefighters Union of Australia (the Firefighters Union) is the national employee organisation for Australia’s 20,000 professional firefighters.

2. These proceedings involve a claim for compensation by an ACT Firefighter who seeks compensation in relation to prostate cancer. In his claim, the applicant seeks to take advantage of the special provisions of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) which provide a simplified method for firefighters who develop certain conditions, including prostate cancer, to establish that their employment contributed, to a significant degree, to the development of the condition.

3. In order to take advantage of the special provisions the applicant must establish a number of things:

   (a)That he suffers from a disease mentioned in the Table set out in subsection 7(8);

   (b)That before the disease was sustained, he was ‘employed as a firefighter for the qualifying period mentioned for that disease’ – in the case of prostate cancer, 15 years; and

   (c)That he was exposed to the hazards of a fire scene during that period.

4. Subsection 7(9) includes provisions which may assist a person to meet the requirement that they were ‘employed as a firefighter’ for the relevant period. It is essentially a deeming provision. At the time when the applicant made his claim and the reviewable decision was made, it provided as follows:

   For the purposes of subsection (8):

   (a)an employee is taken to have been employed as a firefighter if firefighting duties made up a substantial portion of his or her duties; and

   (b)an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and

   (c)an employee is taken to have been employed as a firefighter only if he or she was (disregarding the effect of any declarations under subsection 5(15)) employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.

5. However, in December of 2022, just over a month before the matter came on for hearing, relevant amendments were passed by the Commonwealth Parliament. The amendments did not affect the primary provision (subsection 7(8)) but alterations were made to the deeming provision. Subsection 7(9) was amended to read as follows:

   For the purposes of subsection (8):

   (a)an employee is taken to have been employed as a firefighter if the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion of his or her duties; and

   (b)an employee who was employed as a firefighter for 2 or more periods that add up to the qualifying period is taken to have been so employed for the qualifying period; and

   (ba)for an employee of the Australian Capital Territory specified in a declaration under subsection 5(15) – the employee is taken to have been employed as a firefighter during any period for which the employee was a member of a firefighting service;

   (c)an employee is taken to have been employed as a firefighter only if he or she was employed as a firefighter by the Commonwealth, a Commonwealth authority or a licensed corporation.

6. The matter was heard in January 2023 and the evidence in this matter is closed. However, the Tribunal gave the parties leave to file written submissions and an extended timetable for providing them. In the interim, the Firefighters Union applied to be joined.

7. It is easy to see why it wishes to be joined and it is worth extracting the reasons they give for seeking to be joined in full.

   The Union understands that the respondent has been asked to make submissions on:

   whether the applicable law for the matter was that which was in operation prior to or after 7 December 2022, when amendments to s 7(9) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) were made by Part 27 of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs Act); and

   the applicant's evidence on length of relevant qualifying service for the purposes of the operation of the deeming provision in s 7(8) of the SRC Act.

   That is, the Respondent has been asked to make submissions on the appropriate construction of ss 7(8) and 7(9) of the SRC Act and the operation of Part 27 of the Secure Job Act (Construction Question).

   The Union represents no less than 1172 persons who stand to be directly affected by the construction of the sections of the SRC Act referred to in the above questions. That is, current financial members of our union who work in the Australian Capital Territory or are employed by Airservices Australia and working at airports across the country.

   Moreover, the legislative scheme which those sections form part of, presumptive legislation for occupational cancers affecting firefighters, has been adopted, with some variation, by all states and territories in Australia. Where the Commonwealth legislation has formed the model upon which other jurisdictions have used as a basis for their own legislation then any statutory construction adopted with respect to the Commonwealth legislation would have persuasive effect on the approach to be adopted in those other jurisdictions.

   For this reason, we submit that the Union's interests will be affected by the decision the Tribunal makes on the Construction Question.

   Moreover, the Union is in the unique position of being subject-matter experts on the legislative intention of provisions being considered and its background. The Union appeared before the Senate Education, Employment and Workplace Relations Legislation Committee's inquiry into the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Bill 2011:

   through the preparation of detailed written submissions; and

   at public hearings in Melbourne on 9 August and Perth on 2 September, where the Union Secretary, Union President and National Industrial Officer addressed the Committee.

   Throughout the course of the passing of the Safety, Rehabilitation and Compensation Amendment (Fair Protection for Firefighters) Act 2011 (Cth) which first introduced presumptive legislation for occupational cancers affecting firefighters and the Secure Jobs Act which recently amended those legislative provisions, the Union has been involved submissions to parliamentary inquiries and briefing Senators and Members of Parliament on the latest scientific findings with respect to firefighter cancers and mobilising our members to cooperate with academics and researchers allowing so as to allow the cohort studies to be performed which give the scheme its scientific integrity.

   On Friday 31 March 2023, the Government of the State of Tasmania announced that it would make amendments to its presumptive legislation for occupational cancers affecting firefighters similar to those made under Part 27 of the Secure Jobs Act, such that Tasmanian laws with respect to occupational cancers affecting firefighters would be consistent with the Commonwealth legislation. This decision was, at least in part attributable to the representations made by the Union to the Tasmanian Government.

   Minister for Workplace Relations, the Hon Tony Burke acknowledged the representations made by the Union in his second-reading speech to the Secure Jobs Act (Commonwealth, Hansard, House of Representatives, 27 October 2022, 2180 (Tony Burke).

   It follows that the Union is very familiar with the intention and legislative history of the provisions the subject of the Construction Question and would be in a position to assist the Tribunal and enable the proceedings to be dealt with more efficiently, taking into account the complexity of the matter.

   For these reasons we submit that the Tribunal should exercise its discretion to allow the Union to be joined as a party to these proceedings, so that it can be heard on the Construction Question.

8. While this submission demonstrates that the Tribunal may well be assisted by submissions made by United Firefighters and the interests of the union’s members will be affected by any decision the Tribunal may make, the statutory test for the joinder of a party is a narrow one. Subsection 30(1A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that a person ‘whose interests are affected by the decision’ may apply to be joined and if they do, the Tribunal has a discretion to join them. The focus in the provision however is not on the decision of the Tribunal but on the decision under review.[1] Accordingly, it is necessary to focus on whether the decision under review affected the interests of the Firefighters Union.  In my assessment, none of the matters identified by the Firefighters Union suggest an interest which is affected by the decision which is the subject of review.

   [1] See for example Re Maunsell & Partners Pty Ltd and Maunsell Consultants and Export Development Grants Board (1980) 2 ALD 813, [22] and Re C and Collector of Customs (NSW) (1983) 5 ALN N222 (cited on Lexis Nexis as N157) at N224.

9. I do not doubt that the conclusions which the Tribunal reaches in this matter will have significant implications for the Firefighters Union’s members and that it may be able to provide valuable assistance to the Tribunal in identifying materials which will assist in identifying Parliament’s intention in modifying the provisions of the SRC Act in December 2022, but regrettably those considerations do not meet the statutory test for joinder as a party.

10. In those circumstances the application to be joined is declined. There may be that the Firefighters Union is able to provide assistance to the parties in formulating any submissions they might make about the proper interpretation of the relevant provisions.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan

...................................[SGD]...................................

Associate

Dated: 21 April 2023

Date Final Submission Received:	18 April 2023
Solicitors for the Applicant:	Slater & Gordon Lawyers
Solicitors for the Respondent:	McInnes Wilson Lawyers
Other Party:	United Firefighters Union of Australia