Sydney Trains v Safework NSW [2017] NSWIRComm 1009

Sydney Trains v Safework NSW [2017] NSWIRComm 1009

The HSRs had no unilateral or primary right under s.72(1)(c) to select the HOSTA course without effective consultation with Sydney Trains, and the inspector and internal reviewer erred by proceeding on that basis. However, because the external review was de novo and Sydney Trains had not identified a particular alternative course or provider for comparison, the correct and preferable decision on the unusual facts was that the four named HSRs undertake the HOSTA training, with Sydney Trains' obligations under s.72(2) then applying.

Jurisdiction
Australia
Judgment Date
03 March 2017
Procedural Posture
Application for External Review Under S.229 of the Work Health and Safety Act 2011 / External Review of an Internal Review Decision Concerning Health and Safety Representative Training
Outcome
The internal reviewer's decision is varied.
Legal Topics
['external Review' 'health and Safety Representative Training' 'choice of Approved Training Provider' 'consultation Between HSR and Person Conducting a Business or Undertaking' 'commission Powers on Review']
['workplace Health and Safety' 'industrial Relations' 'administrative Law' 'statutory Construction'] ['external Review' 'health and Safety Representative Training' 'choice of Approved Training Provider' 'consultation Between HSR and Person Conducting a Business or Undertaking' 'commission Powers on Review']

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Procedural Posture

Application for External Review Under S.229 of the Work Health and Safety Act 2011 / External Review of an Internal Review Decision Concerning Health and Safety Representative Training

Legal Issues

  1. 1 ['Whether the external review by the Industrial Relations Commission under s.229 of the Work Health and Safety Act 2011 is a de novo merits review.' 'Whether s.72(1)(c) gives health and safety representatives a unilateral or primary right to choose a training course.' 'Whether an inspector deciding a disagreement under s.72 must choose between concrete alternative courses proposed by the health and safety representative and the person conducting a business or undertaking.' 'What was the correct and preferable decision about the training course to be undertaken by Robert Beattie, Jerome Pirozzi, Michael Richmond and Stephen Hillard.']

Ratio Decidendi

The HSRs had no unilateral or primary right under s.72(1)(c) to select the HOSTA course without effective consultation with Sydney Trains, and the inspector and internal reviewer erred by proceeding on that basis. However, because the external review was de novo and Sydney Trains had not identified a particular alternative course or provider for comparison, the correct and preferable decision on the unusual facts was that the four named HSRs undertake the HOSTA training, with Sydney Trains' obligations under s.72(2) then applying.

Court Disposition

The internal reviewer's decision is varied.

Orders

  • ['The disagreement between Sydney Trains and Robert Beattie, Jerome Pirozzi, Michael Richmond and Stephen Hillard is decided by those HSRs undertaking the training provided by HOSTA.' "Sydney Trains' obligations under s.72(2) of the Work Health and Safety Act 2011 come into effect."]