Fire Brigade Employees’ Union of New South Wales (on behalf of Rampling) v Industrial Relations Secretary (Fire & Rescue NSW) (No 2) [2020] NSWIRComm 1060

Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales (on behalf of Rampling) v Industrial Relations Secretary (Fire & Rescue NSW) (No 2) [2020] NSWIRComm 1060 Hearing dates: 28 August 2020 Date of orders: 28 August 2020 Decision date: 28 August 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The notice of motion filed by the Fire Brigade Employees' Union, New South Wales on 29 July 2020 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application for interim order – whether proposed order of a kind the Commission is "authorised to make" Legislation Cited: Industrial Relations Act 1996 (NSW) s 136(1)(a),(d) Cases Cited: Grassby v R (1989) 168 CLR 1 Category: Procedural and other rulings Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Industrial Relations Secretary (Respondent) Representation: Counsel: L Saunders (Notifier) M Easton (Respondent) Solicitors: McArdle Legal (Notifier) Kingston Reid (Respondent) File Number(s): 2018/208229 and 2020/16602 Publication restriction: No

EX TEMPORE Judgment 1. On 29 July 2020, the notifier, the Fire Brigade Employees' Union, New South Wales, filed a notice of motion seeking an interim order pursuant to s 136(1)(d) of the Industrial Relations Act 1996 (NSW). The order that is sought is in these terms: "Pending the hearing and determination of these matters, and subject to further order of the Commission, in the event that the position of Station Commander at Tweed Heads Fire Station becomes vacant, the Respondent is not to appoint any person other than Erin Rampling to said position other than in an acting capacity." 1. In support of the motion, the FBEU read an affidavit of Tim Anderson, the Secretary of the Country sub-branch of the FBEU, affirmed on 14 August 2020 and an affidavit of Erin Rampling affirmed on 26 August 2020. 2. In opposing the motion, Fire & Rescue New South Wales read an affidavit of Brendan Cox, who is employed with Fire & Rescue New South Wales as Chief Superintendent HR Capability, Planning and Staffing, sworn on 21 August 2020. 3. Ms Saunders of counsel, who appeared for the FBEU, suggested that there were three questions to be determined but, in reality, I see that there are only two: 1. Does the Commission have the power to make the interim order sought? And if so, 2. Should the Commission make that order? 1. The FBEU relies on s 136(1)(d) of the Industrial Relations Act. That section empowers the Commission in arbitration proceedings to "make any other kind of order it is authorised to make (including an order made on an interim basis)". 2. The FBEU's written submissions summarised the approach to be taken to the making of interim orders. It submitted though that, in light of the Commission's broad power and particular purpose, it is not appropriate to apply those principles strictly or inflexibly. What the submissions did not fully address though is how the order sought properly falls within s 136(1)(d). That is, how it is a kind of order that the Commission is "authorised to make"? 3. In her oral submissions, Ms Saunders submitted that the Commission has an inherent power to protect the integrity of its own proceedings. Provided that the order sought is required in the sense of being directly referable to the preservation of its own proceedings, it is within the jurisdiction of the Commission to make such an order. 4. In support of this proposition, Ms Saunders referred me to Grassby v R (1989) 168 CLR 1. In that case, the High Court was considering whether a magistrate had power to stay committal proceedings as an abuse of process, albeit not strictly in accordance with the relevant legislation. In the course of his judgment, Dawson J, with whom the other members of the Court agreed, observed (at 16): "On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise. Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent." 1. His Honour went on to say in the context of that case (at 17): "The fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred upon him. But the scheme of that section, far from requiring the implication of a general power to stay proceedings, is such as to impose an obligation upon the magistrate to dispose of the information which brings the defendant before him by discharging the defendant as to it or by committing him for trial." 1. At 18 his Honour stated: "There is no room in the face of these statutory obligations, couched as they are in mandatory terms for the implication of a discretionary power to terminate the proceedings in a manner other than that provided." 1. I accept that Ms Saunders conceded that the case was not directly on point, and I agree. I do not think that Grassby assists the FBEU. Just as the magistrate's power in that case was fettered by the legislation, so is the Commission's power in this case. The Commission's jurisdiction is derived from statute. The relevant legislation in the present matter is the Industrial Relations Act. The Act empowers the Commission to make interim orders of a kind it is "authorised to make". 2. In my opinion, the word "authorised" is key. The legislature did not use words such as "necessary" or "appropriate", but "authorised". In the context of a tribunal such as the Commission, which is a creature of statute, the word "authorised" must be referrable to a power conferred by legislation, whether the Industrial Relations Act or one of the other acts conferring jurisdiction on it. 3. In my view, nothing in the Industrial Relations Act confers on the Commission the power to make an order of the kind sought in the motion. 4. I digress to observe briefly that during the course of her oral submissions Ms Saunders also sought to equate the interim order sought in the motion with a direction. It is enough to dispose of that argument to observe that s 136(1)(a) confers on the Commission a specific power to make a direction which stands apart from an order such as referred to in par (d). 5. In my view, the interim order is not of a kind that the Commission is authorised to make within the meaning of s 136(1)(d). As a result, the Commission has no power to make an interim order in the terms sought. It follows that it is not necessary that I traverse the evidence adduced by the parties or explore the merits of the application. That is, it is not necessary that I consider whether the Commission should make the order, assuming the jurisdiction exists. 6. The motion is dismissed. Damian Sloan Commissioner