Readers of this blog will be familiar with changes to the law that came with the Work Health and Safety Act 2011 (NSW) (the ‘WHS Act’). The earlier Act, the Occupational Health and Safety Act 2000 (NSW) governed the relationship between employees and employers. The WHS Act deals with a ‘Person Conducting a Business or Undertaking’ (a PCBU) and ‘workers’. The concept of ‘worker’ is much broader than ‘employee’ and today a worker, includes volunteers. The NSW Rural Fire Service, for example, has 824 employees but, with a volunteer workforce of 74516, there are over 75000 workers! (NSW Rural Fire Service ‘Fast facts: About the NSW Rural Fire Service’, accessed 27 August 2016).
The WHS Act imposes obligations upon a PCBU to ‘consult’ with workers (WHS Act, Part 5). The facilitate consultation, the Act provides for the election of Health and Safety Representatives (ss 60-74) and for the establishment of Health and Safety Committees (ss 75-79). A worker may request a PCBU to conduct elections for Health and Safety Representatives (s 50). If a request is made the PCBU must consider how to divide the workforce into work groups. Where agreement cannot be reached on the establishment of a work group, a worker, or the PCBU, can ask the regulator (formerly WorkCover and now SafeWork NSW) to appoint an inspector. The inspector can determine the establishment of workgroups or they may decide ‘that work groups should not be determined or that the agreement should not be varied (as the case requires)’ (s 54). A person unhappy with the inspector’s decision can apply for an ‘internal review’ (s 224(1). A person is appointed as the reviewer and he or she may confirm, vary or set aside the original decision and substitute whatever decision the reviewer considers appropriate (s 224(2)). A person dissatisfied with the outcome of an ‘internal review’ can apply to the Industrial Relations Commission for an ‘external review’ (s 229).
Shane Bryant, a volunteer with the NSW RFS has exercised his rights as a worker under the WHS Act. On 4 April 2013 he made a request for the election of Health and Safety Representatives. On 6 May 2013 he asked the regulator to appoint an inspector. ‘The Inspector determined that no changes were required to the extant consultative arrangements’ (NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, [6]). On 2 July 2014 Mr Bryant sought an internal review of the inspector’s decision. That review set aside the Inspector’s decision – ‘SafeWork then required RFS to consult and implement work groups and facilitate the appointment of health and safety representatives’ ([8]).
The RFS then applied to the Industrial Commission for in external review. The RFS took steps to enter negotiations with the relevant union representing paid staff, and the Rural Fires Service Association (the RFSA) representing volunteers. The RFS, with the support of SafeWork, sought adjournments of the external review whilst those negotiations took place.
Mr Bryant opposed those adjournments and asked the Commission to hear and determine the matter. This raised the question of Mr Bryant’s ‘standing’ and who was the other ‘party’ to the case. The Commission noted that it ‘is, generally speaking, an arbitral tribunal’ ([68]). That means the Commission is used to resolving an issue where there two parties present their claims, which the Commission rules on. In this case the RFS was the ‘applicant’ but the legislation did not provide for who was to be the ‘respondent’.
SafeWork argued that they were not the respondent. They had made the decision that was the subject of the review but their job was to be impartial. SafeWork’s ‘role in the review was to make submissions on interpretation of the legislation and provide assistance to the Commission in respect of the questions for determination by it’ ([41]). It was not their job to ‘defend’ the decision made on internal review and argue that the Commission should confirm that decision.
The fact that Mr Bryant had made all the initial applications did not make it axiomatic that he was the appropriate ‘respondent’. Although he had made all the applications the law did not require that he do so, the person who made the application for the election of health and safety representatives, did not have to the person who applied for an inspector to be appointed and that did not have to be the same person who then applied for an internal review. Any one of the RFS’ 70 000 workers could have made any of those applications.
The RFS submitted that Mr Bryant does not have sufficient interest, over and above other workers, to be joined as a party to an external review … His interests, and those of other workers, are protected by their authorised representatives, the PSA and the RFSA ([34]).
The problem was that the RFSA was not before the Commission that is the RFSA was not there claiming to represent the volunteers.
SafeWork did not object to Mr Bryant being permitted to ‘intervene’ in the proceedings ([42]). In the absence of any other respondent, the Commission said it should have regard to the fact that ‘It would be incongruous for RFS to be able to call evidence and make submissions in relation to the substantive issues but exclude the initial mover in the underlying application’ ([42](6)].
The question then was whether Mr Bryant should be considered an ‘intervener’ or a ‘party’ to the proceedings. An intervener has only a limited interest in the proceedings and their involvement is subject to direction by the tribunal. Without going into the differences, the Commission allowed Mr Bryant to ‘intervene’. In coming to this decision the Commission said that Mr Bryant
… has a sufficient interest to be recognised at least as an intervener. In particular because:
(1) Mr Bryant was:
(a) the person who made the initial request under s 50;
(b) the person who made the request under s 54 for the appointment of an inspector; and
(c) the applicant for an internal review under s 224.
(2) RFS workers would be potentially adversely affected should the application succeed and it follows that Mr Bryant would be potentially adversely affected.
(3) There is no party presently representing the interests of workers or to advance material contrary to the RFS contentions or material.
(4) In the circumstances it would be an appropriate protective step to grant Mr Bryant leave to intervene.
In what might be perceived as a ‘dig’ at the RFSA, Judge Kite said (at [78]):
I have given particular weight to the absence of a party representing the interests of workers. Should that position change, and an organisation or person with authority to represent the class of workers involved seek to participate, it may be appropriate to review Mr Bryant’s position.
The result of the Commission’s ruling is that Mr Bryant is allowed to:
… call evidence, cross-examine witnesses and make submissions. The extent to which these matters can be undertaken continues, of course, to be under the control of the Commission’s discretion ([79]).
Discussion
This cases raises some interesting issues about the WHS Act. The fact that the Act provides for various reviews but fails to indicate who is to be considered a ‘party’ before a tribunal is problematic. It is also problematic that each of the RFS’ 70 000 workers could be making those applications. The RFS said (at [27]):
If Mr Bryant was given a right to participate as a party or intervenor then every other worker affected in the same way as a worker should be given the same right. Permitting every single worker the right to participate in either capacity is not consistent with the proper functioning of the Industrial Relations Commission nor with the provisions of s163 of the Industrial Relations Act.
Whether or not it is ‘consistent’ with the Act, it would certainly be problematic if every worker sought to intervene in proceedings. Of course the commission wasn’t faced with every worker, or even multiple workers, it was faced with only one and the absence of any person or organisation seeking to represent the collective workforce.
Conclusion
The decision here is certainly giving effect to the principle that a volunteer is a worker and enjoys the rights and privileges once only given to employees. Regardless of the merits of Mr Bryant’s claims, he is certainly committed and dedicated and willing to put his money and his effort into what he must see as the best interest of the RFS and its workforce.
Australian Emergency Law 
In relation to the RFS and the RFSA and Mr Bryant. The RFS is by definition a Para-military organization, however, the RFSA represents all workers in the RFS. Any complaints about job and equipment safety and legal aspects of the RFS, the RFSA take to the RFS Commissioner and or State Parliament, even though it seems to take forever, it usually gets resolved. The RFSA has recently started an advocate service to represent members who are in trouble with either the RFS management or as in the case of Mr.Wells, the law and support them in their time of trouble. I have had to use Section 101 of the Crimes Act 40 of 1900 at times to pull some managers and officers into line over directions given that was actually breaking the law and also used their own Standard operating procedures as well to defend myself in cases of pure bastardy and stupidity by officers within the service.
The RFSA represents volunteers, not all ‘workers’ (ie not employees). In Mr Bryant’s case, he led evidence of the RFSA Advocacy Support policy. Kite AJ said (at [18]) “Under the heading “Background” in the policy statement, is a statement to the effect that the Association does not become involved in matters of an industrial nature. I understood Mr Bryant relied on this to indicate that the RFSA would not undertake a role in these proceedings and did not have a role representing volunteers in the negotiations with the RFS concerning the establishment of workgroups.” His Honour said that the conclusions regarding the RFSA “do not seem to me to follow from the document” and in particular from the role that the RFSA had been playing in the ongoing negotiations. Given the role of volunteers as ‘workers’ the RFSA may find itself with an increasing role in what was, traditional, industrial or employment matters.
As for the Crimes Act 1900 (NSW) s 101; that was repealed in 2007. It used to say:
So I expect your reference to s 101 is incorrect.
What interests me, is the claim that the RFSA is the party “authorized” to represent volunteers.
It seems to be something of a conflict of interest that the authority in dispute with the worker may also be the authority in charge of determining who represents him/her, and how.
I’m also remembering that volunteers are deemed to be members of the RFSA by default. Not exactly a matter of free choice, altho we can choose to leave, and the claim that the RFSA is the “authorized” representative would appear to deny us the right to have another organization represent us.
I may also be out of date, but the RFSA was originally structured so that it not only represented both volunteers and paid staff… but also gave 50% of the voting power to representative elected by staff. That’s a pretty stiff gerrymander and gave rise to the belief that the primary role of the RFSA was to act as cheerleader for Phil Koperberg.
Colour me cynical…..Peter