APPLICATION FOR EXTERNAL REVIEW PURSUANT TO SECTION 229 OF THE WORK HEALTH AND SAFETY ACT 2020

WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2025 WAIRC 00702

DELIVERED : Friday, 15 August 2025

FILE NO. : WHST 9 OF 2024

Applicant

AND

WorkSafe Commissioner

Respondent

CatchWords : Application for leave to intervene – Industrial Relations Act 1979 (WA) s 27(1)(k) – Direct interest in proceedings – Leave to intervene granted

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(k)

  Work Health and Safety Act 2020 (WA) s 229A, cl 29 Schedule 1     

Result : Leave to intervene granted

Representation:

Applicant : Mr M Quinn (of counsel)

Respondent : Ms H Wreford (of counsel)

Proposed intervenor : Mr C Deckers (of counsel)

Case(s) referred to in reasons:

Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2022] WAIRC 00636

Western Australian Municipal, Administrative, Clerical and Services Union of Employees; The Construction, Forestry, Mining and Energy Union of Workers; Western Australian Municipal, Clerical and Services Union of Employees -v- (Not Applicable), The Construction, Forestry, Mining and Energy Union of Workers - SECTION 29B PARTY, Local Government, Racing and Cemeteries Employees Union (WA) - INTERVENOR; (Not Applicable), Western Australian Municipal, Administrative, Clerical and Services Union of Employees (SECTION 29B PARTY), Racing and Cemeteries Employees Union (WA) - SECTION 29B PARTY [2024] WAIRC 00057 

Reasons for Decision

1         For simplicity I refer to the respondent as WorkSafe in these reasons.

2         Mr Aaron Anderton applied to the Work Health and Safety Tribunal (Tribunal) for external review of WorkSafe’s decision to cancel a provisional improvement notice (PIN).

3         WorkSafe opposes that application and says the correct and preferable decision is for the Tribunal to confirm the decision to uphold the cancellation of the PIN.

4         Patrick Stevedores Holdings Pty Limited (Patrick Stevedores) is Mr Anderton’s employer and has applied for leave to intervene in these proceedings and to be joined as a respondent (Form 1A Application). It no longer seeks to be joined as a respondent.

5         These reasons deal with whether the Tribunal should grant Patrick Stevedores leave to intervene in these proceedings.

Question to be decided

6         I must decide whether Patrick Stevedores has sufficient interest in the matter to be granted leave to intervene in application WHST 9 of 2024.

Background

7         The Tribunal asked the parties several times to confer with Patrick Stevedores and to tell the Tribunal how they proposed these issues should be programmed and heard. The parties and Patrick Stevedores proposed that the parties have until 4 July 2025 to file and serve any responses to the Form 1A Application.

8         WorkSafe filed a response to the Form 1A Application. Mr Anderton did not.

9         In response to the Tribunal asking the parties and Patrick Stevedores whether the matter should be heard on the papers or at an in-person hearing, and whether on the basis of further submissions or simply on the basis of the application for leave to intervene and any responses filed by the parties:

1. Patrick Stevedores said the application for leave to intervene should proceed to a short hearing to allow the parties to address the Tribunal on matters arising from the application for leave to intervene and any responses filed by the parties only;
2. WorkSafe said the application can be heard on the papers; and
3. Mr Anderton did not respond.

10      Accordingly, the matter was listed for a short hearing to allow the parties and Patrick Stevedores to be heard on the Form 1A Application and any responses filed by the parties (being WorkSafe’s response).

Principles

11      The Commission’s power to grant leave to intervene is set out in s 27(1)(k) of the Industrial Relations Act 1979 (WA) (IR Act). It applies to the Tribunal: cl 29 of Schedule 1 to the Work Health and Safety Act 2020 (WA) (WHS Act).

27. Powers of Commission

Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…

(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; and

12      I set out the relevant principles relating to intervention in Western Australian Prison Officers’ Union of Workers v Minister for Corrective Services [2022] WAIRC 00636 at [11]:

The Full Bench considered s 27(1)(k) of the IR Act most recently in Australian Workers' Union, West Australian Branch, Industrial Union of Workers & others v (Not Applicable) [2016] WAIRC 00966 (AWU v NA) from [17]-[21]:

[17] The principles for the Commission to consider when determining whether to exercise its discretion to allow a person to intervene in proceedings pursuant to its power to do so under s 27(1)(k) of the IR Act, in particular the determination whether a person has, in the opinion of the Commission, a sufficient interest in a matter that that person should be heard, were considered by Sharkey P in Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343.  In Gairns the substantive application was an application brought before the President's original jurisdiction under s 66 of the IR Act for an interpretation of union rules.  The federal nursing union, the Australian Nursing Federation, sought intervention in the proceedings.  So, too, did federal and state Academic Unions.  President Sharkey found that the most helpful dissertation of principles relating to intervention was set out in Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86.

[18] In Ludeke, the matter before the High Court was an application by the Customs Officers' Association of Australia, Fourth Division to make absolute an order nisi for a prerogative writ to quash an order made by Justice Ludeke that leave be granted to the Administrative and Clerical Officers' Association, Australian Government Employment (ACOA) to intervene in the matter subject to limitation on certain questions it raised in its submissions in a demarcation dispute between that union and the ACOA.  Chief Justice Gibbs at (519) - (520), with whom Dawson J agreed, observed:

The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s. 40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 C.L.R. 546, at p. 552); Reg. v. Moore; Ex parte Victoria ((1977) 140 C.L.R. 92, at pp. 101-102); Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) ((1978) 140 C.L.R. 615, at p. 620). That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.).

[19] From these observations of Gibbs CJ in Ludeke, the following principles emerge:

(a) Every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and

(b) The principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made.

[20] Justice Mason in Ludeke made similar observations.  He observed that an interest which in its nature is inadequate to support intervention in legal proceedings in a court may be sufficient to support intervention in a matter of industrial arbitration before the Commission (523).  His Honour found that if an organisation has a substantial interest sufficient to sustain an application to the court for prohibition then, generally speaking, it is desirable that the Commission should recognise that interest, subject to discretionary considerations, as a basis for intervention (525).  In making this observation, his Honour had regard to the decision in R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 where it was found that where the prosecutor had relevant coverage under its eligibility rule there could be no doubt that it had a substantial interest sufficient to sustain its intervention and that a lack of coverage would result in the prosecutor's interest being much more tenuous (525).  Justice Mason in Ludeke also said (527):

Indeed, the principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy instead of being relegated to a resolution of the controversy in several proceedings.  It is the attainment of this object that justifies intrusion into the litigant's right or interest in pursuing his proceedings as he chooses to constitute them.

[21] Justice Brennan said that he generally agreed with the judgment of the Chief Justice.  His Honour then went on to add that in determining whether a repository of a statutory power is bound to hear a person who is not directly involved in proceedings regard must be had (528):

to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at pp. 411-412)), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott ([1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137-141). But that is not an absolute rule.

13      That approach is consistent with the Commission in Court Session’s reasoning at [6] in Western Australian Municipal, Administrative, Clerical and Services Union of Employees; The Construction, Forestry, Mining and Energy Union of Workers; Western Australian Municipal, Clerical and Services Union of Employees -v- (Not Applicable), The Construction, Forestry, Mining and Energy Union of Workers - SECTION 29B PARTY, Local Government, Racing and Cemeteries Employees Union (WA) - INTERVENOR; (Not Applicable), Western Australian Municipal, Administrative, Clerical and Services Union of Employees (SECTION 29B PARTY), Racing and Cemeteries Employees Union (WA) - SECTION 29B PARTY [2024] WAIRC 00057 and I adopt it in this matter.

Should the Tribunal grant Patrick Stevedores leave to intervene?

14      Patrick Stevedores says the Tribunal should grant leave for it to intervene because it has a direct interest in the outcome of the proceedings because it would bear the consequences if the Tribunal sets aside the decision the subject of application WHST 9 of 2024. Patrick Stevedores wants the opportunity to address this to the extent that it is a potential outcome, because it could impact on Patrick Stevedores’ compliance history.

15      Patrick Stevedores says the Tribunal should grant it leave to intervene in the proceedings because:

1. as the decision-maker in relation to the decision that is the subject of application WHST 9 of 2024, the WorkSafe Commissioner is the proper contradictor;
2. WorkSafe has indicated that it wants to limit its submissions to the powers that were exercised under the WHS Act;
3. the Tribunal will be left in a difficult position because WorkSafe does not propose to relevantly assist the Tribunal in relation to matters relevant to the conduct and outcome of the application pursuant to s 229A of the WHS Act. This is because WorkSafe does not propose to address the Tribunal about all material matters to allow the Tribunal to determine the correct and preferable decision at the time of the completion of the review (see s 229A(4) of the WHS Act); and
4. accordingly, Patrick Stevedores seeks leave to intervene so that it can relevantly assist the Tribunal to reach the correct and preferable decision at the time of the completion of the review.

16      WorkSafe agrees with Patrick Stevedores’ submissions. It argues that the Tribunal should grant Patrick Stevedores leave to intervene because Patrick Stevedores has a direct interest in the matter. This is because Patrick Stevedores will be bound by the outcome of the proceedings.

17      WorkSafe says:

1. the Tribunal should grant Patrick Stevedores leave to intervene because Patrick Stevedores has a direct interest in the matter. This is because Patrick Stevedores will be bound by the outcome of the proceedings;
2. in relation to Patrick Stevedores’ submission set out at [15c] above, WorkSafe anticipates that its submission would include information considered and relied upon by the inspector and internal reviewer, including information provided to Mr Anderton on 10 October 2024;
3. Patrick Stevedores is best placed to provide the additional information to assist the Tribunal at a de novo hearing; and
4. Mr Anderton has identified that the PIN has been complied with and has indicated that ‘any restoration of the PIN leaves the employer with nothing further to remedy and no further work to do’. On that basis, WorkSafe asks whether further proceedings are necessary or desirable in the public interest.

18      Mr Anderton did not file a response to the Form 1A Application. He made submissions at the hearing. Broadly he says:

1. he does not object to the Tribunal granting Patrick Stevedores leave to intervene, but says that WorkSafe should have to engage in the proceedings;
2. in effect he disagrees that the outcome of the proceedings could affect Patrick Stevedores’ compliance history; and
3. Patrick Stevedores has already complied with the PIN so the risk in the workplace has been removed entirely. That means there is no risk to Patrick Stevedores if the Tribunal were to reinstate the PIN.

Consideration

19      Under s 27(1)(k) of the IR Act (by virtue of cl 29 of Schedule 1 of the WHS Act), the Tribunal may permit intervention if the Tribunal considers that the person has a sufficient interest in the matter.

20      Applying the reasoning in Ludeke, adopted by the Full Bench in AWU v NA, and consistent with the recent reasoning of the Commission in Court Session at [6] in the case referred to above in [13], if Patrick Stevedores’ rights would be directly affected by the order/s sought in application WHST 9 of 2024 then Patrick Stevedores would have sufficient interest in this matter to justify granting leave to intervene.

21      I am satisfied that Patrick Stevedores would be directly affected by the order sought by Mr Anderton. Patrick Stevedores has a direct interest in the proceedings because Patrick Stevedores would be bound by the outcome. It would bear the consequences if the Tribunal were to uphold Mr Anderton’s substantive application and set aside the decision the subject of application WHST 9 of 2024. Patrick Stevedores is also best placed to provide any additional evidence about the current circumstances. That may be relevant to the Tribunal’s consideration of the correct and preferable outcome.

22      Accordingly, I am persuaded that Patrick Stevedores’ interest in this matter is sufficient to justify an order under s 27(1)(k) of the IR Act permitting intervention to allow a full and fair opportunity to be heard in the proceedings.

Order

23      Patrick Stevedores’ application for leave to intervene in application WHST 9 of 2024 is upheld. I will order that Patrick Stevedores be granted leave to intervene in application WHST 9 of 2024.