Industrial Relations Commission New South Wales Medium Neutral Citation: Broken Hill Town Employees' Union v Health Secretary (Temporary Employment in Broken Hill Health Service) [2021] NSWIRComm 1025 Hearing dates: 23 March 2021 Date of orders: 23 March 2021 Decision date: 23 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – whether industrial agreement between the parties is to be taken as regulating temporary employment – whether, if not, a separate industrial instrument applies to the parties Legislation Cited: Area Health Services Act 1986 (NSW) s 26 Commonwealth Conciliation and Arbitration Act 1904 (Cth) s 4 Health Administration Act 1982 (NSW) s 21 Industrial Relations Act 1996 (NSW) ss 6, 10, 130, 175 Public Hospitals Act 1929 (NSW) s 40BA Cases Cited: Amalgamated Metal Workers' and Shipwrights Union and Ors v BHP Pty Ltd Whyalla and Anor (1982) 5 IR 69 Federated Clerks' Union of Australia & Anor v Victorian Employers' Federation & Ors (1984) 8 IR 157 Health Services Union New South Wales v Health Secretary on behalf of Northern NSW Local Health District [2019] NSWIRComm 1055 The Australasian Meat Industry Employees Union v Teys Bros (Biloela) Pty Ltd and Ors (Australian Industrial Relations Commission, Bacon C, 17 November 2005, unrep) Category: Principal judgment Parties: Broken Hill Town Employees' Union (Notifier) Health Secretary (Respondent) Representation: A Knox (Notifier) M Whitbread of Counsel (Respondent) File Number(s): 2020/83407 Publication restriction: No EX TEMPORE DECISION 1. On 16 March 2020 the Broken Hill Town Employees' Union ("Union") filed with the Office of the Industrial Registrar a notification of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) ("Act"). The Notification described the "question, dispute or difficulty" to which it related as follows: "1. The employer, NSW Health Services – Far West Local Health District, is utilising temporary contracts to fill vacant positions. This is in breach of the Agreement. 2. The employer is refusing to recruit appropriately to vacant positions, which is contrary to NSW Ministry of Health Policy Directive. 3. The employer has refused to meet and/or discuss this matter with the Union." 1. On the case presented by the Union at today's hearing, there is only one issue requiring determination by the Commission: what is the "Agreement" to which the Notification refers (and which has allegedly been breached)? The Union contends that it is either: 1. an industrial agreement made in or around 1997 between what was then known as the Health Administration Corporation and the Barrier Industrial Council representing the Union, amongst other unions. The agreement was titled the "Far West Area Health Service Industrial Agreement" ("Industrial Agreement"); or 2. a separate industrial instrument agreed between the parties. 1. It is that dispute which is addressed in this decision. 2. As it will become necessary to refer to them, I observe that in separate proceedings, being matters 2019/77863 and 2019/203622, the Commission as presently constituted was required to consider in some detail the terms of the Industrial Agreement, in the context of an application by the Health Secretary for an award to replace it ("Award Proceedings"). 3. At the hearing today the Union relied on a document titled "Applicant's Outline Submissions" dated 15 December 2020. Those submissions annexed the following documents, which were admitted into evidence over the objections of the Health Secretary: 1. a decision of Bishop C of the Commission dated 22 April 1998 ("Bishop Decision") in which she approved the Industrial Agreement; 2. a single page from the transcript of the Award Proceedings on 22 May 2020; 3. a letter from Stuart Riley, the then General Manager of the Broken Hill Hospital and Health Service to Mr E Butcher, then President of the Barrier Industrial Council, dated 7 November 1997 ("First Riley Letter"); 4. a letter from Mr Riley to Mr Butcher dated 5 December 1997 ("Second Riley Letter"); and 5. a decision of French C of the Commission in matter number IRC 2768/95 dated 16 December 1996, attaching a Statement made by the Commissioner in the same proceedings on 24 January 1996 and a document titled "Terms of Settlement re: Temporary Employees" to which the Statement referred. 1. The Health Secretary relied on the following: 1. a document titled "Outline of Submissions of the Respondent" dated 2 February 2021; 2. a copy of the Industrial Agreement as at the date it was initially made; 3. an extract from the transcript of the Award Proceedings on 20 May 2020; and 4. an extract from the transcript of the Award Proceedings on 22 May 2020. 1. Both parties in their written submissions made reference to, and relied on, evidence that was adduced in the Award Proceedings. However, they accepted that simply because I heard and determined those proceedings does not mean that I can in the present matter have regard to the evidence filed therein. I can and do place little weight on submissions by the parties that purport to reproduce or are derived from evidence in the Award Proceedings that has not been tendered in this matter. 2. In order to comprehend the issues in dispute in these proceedings, it is necessary to briefly traverse the material on which the Union relied: 1. The Statement made by French C on 24 January 1996 purported to record the terms on which a dispute between the Barrier Industrial Council and the Far West Health Service had been resolved. It included the following: "2. TEMPORARY EMPLOYEES The use of 'Temporary Employees' shall only be permitted in accordance with the 'Terms of Settlement' attached hereto and made on a 'without prejudice' basis to apply during the life of the current Agreement (or as otherwise indicated)." 1. The "Terms of Settlement" attached to the Statement included the following: "3. No temporary employee shall be used to permanently fill a full-time or part-time position. … 6. No 'temporary' shall be employed until the Far West Health Service has discussed with the relevant Union and the BIC such employment. If agreement is not reached in accordance with the criteria set out herein before [sic] the matter may be referred to the IRC and the status quo to remain until the issue is dealt with by the IRC. 7. Work which cannot be performed by permanent employees can be covered by utilising temporary employees provided discussions are held with, and agreement reached, between the Far West Health Service and the BIC and relevant Union or Unions before a person is appointed." 1. The decision handed down by French C on 16 December 1996 attached the Statement of 24 January 1996. In his decision the Commissioner observed: "I have now been advised by the Barrier Industrial Council that the settlement has been effective and, as the parties are now negotiating a new agreement, this case can be formally closed." 1. In the First Riley Letter, Mr Riley wrote: "Further to our discussions in May regarding the agreement between the Far West Area Health Service and the Barrier Industrial Council (BIC), I wish to formalise the agreement reached in relation to the filling of positions on a temporary basis in line with the ruling by Mr French. As the ruling related to the then agreement it is necessary to revisit this issue in finalising the new agreement. The Health Service seeks the agreement of the BIC to allow temporary employment under the following conditions: 1. No temporary employee will be used to permanently fill a full-time or part-time position; … 6. No 'temporary' shall be employed until the Far West Area Health Service has discussed such employment with the relevant Union and the BIC. If agreement is not reached in accordance with the criteria set out above, the matter may be referred to the Industrial Relations Commission (IRC). The status quo will be maintained until the issue is dealt with by the IRC. 7. Work which cannot be performed by permanent employees can be covered by utilising temporary employees provided discussions are held with, and agreement reached, between the Health Service, the BIC and relevant Union or Unions before a person is appointed 8. The conditions outlined above are intended to embody the ruling by Commissioner French on this matter. Confirmation of the BIC's acceptance of these arrangements is requested." 1. The Second Riley Letter was marked "without prejudice". It refers to a meeting having been held that morning (5 December 1997) and purports to confirm "the resolution reached", in eight numbered paragraphs. These included: "5. The arrangement for Temporary Employment will be inline [sic] with the draft correspondence already forwarded which embodies the terms of Mr French's ruling; …" It seems to have been by accepted by the parties that the reference to "the draft correspondence" in this passage is a reference to the First Riley Letter. I have proceeded on that basis. 1. The Second Riley Letter concluded: "I trust this is consistent with your recollection of the meeting and look forward to finalising the agreement in the near future." 1. From the Bishop Decision it can be discerned that the Industrial Agreement was unanimously endorsed by members of the relevant unions on 9 December 1997. 2. In the extract from the transcript from the Award Proceedings on which the Union relied, Mr Riley deposed that the Industrial Agreement would have been signed in late December 1997 or early January 1998. 3. The Industrial Agreement does not on its face contain provisions reflecting the contents of the First Riley Letter. 1. In this context, the Union contended that the First Riley Letter and the Second Riley Letter (collectively, "Riley Letters") had the effect of adopting and incorporating into the Industrial Agreement the decision of French C. In the alternative, it was contended that the Riley Letters constitute a separate industrial agreement which is capable of being enforced under the Act as an industrial instrument. 2. Before addressing these contentions, a preliminary issue was raised by the Health Secretary which must first be considered. That is, it was submitted that the Commission ought to decline to determine the matter on the basis that the Notification did not disclose an "industrial matter". There were two broad arguments advanced by the Health Secretary in this regard during today's hearing. 3. Firstly, to the extent that pars 6 and 7 of the First Riley Letter require the agreement of the Barrier Industrial Council and the relevant union to the employment or deployment of temporary employees, they go too far in restricting managerial prerogative. My attention was drawn to Federated Clerks' Union of Australia & Anor v Victorian Employers' Federation & Ors (1984) 8 IR 157 ("Federated Clerks' Union"), in which the High Court considered an award provision requiring the employer to notify and consult with the union on the introduction of technological change. Mason J (as he then was) took no issue with the provision on the basis that it "stop[ped] short of regulating the employer's right to decide whether it will introduce technological change" (at 167). Wilson J observed that the award "does not challenge the right of the employer to make decisions with respect to the introduction of technology" (at 172). 4. The Health Secretary submitted that provisions that required the Union to agree to the employment or deployment of temporary employees permitted it to withhold that agreement, whether or not for good reason. This would have the effect of regulating the employer's right to make decisions regarding its workforce and operations. In keeping with Federated Clerks' Union, this unduly traversed into the realm of managerial prerogative and so could not be an industrial matter. 5. Secondly, the Health Secretary submitted that the terms of the First Riley Letter purported to regulate the relationship between the employer and the Barrier Industrial Council and the Union, and not the relationship between the employer and its employees. It cited The Australasian Meat Industry Employees Union v Teys Bros (Biloela) Pty Ltd and Ors (Australian Industrial Relations Commission, Bacon C, 17 November 2005, unrep) ("Australasian Meat Industry Employees Union"), and Amalgamated Metal Workers' and Shipwrights Union and Ors v BHP Pty Ltd Whyalla and Anor (1982) 5 IR 69 ("Amalgamated Metal Workers") on which that case relied, in support of this proposition. The relevant passages from Australasian Meat Industry Employees Union are at [12]-[15]. 6. The term "industrial matter" is defined in the Act. The "general definition" is set out in s 6(1) as meaning "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry". Section 6(2) provides examples of industrial matters, including at s 6(2)(a) "the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees)" (emphasis added). 7. Care must be taken when seeking to construe these provisions in light of authorities that have been decided under differently-worded legislation. The observations of Mason and Wilson JJ in Federated Clerks' Union, of Bacon C in Australasian Meat Industry Employees Union and of the Australian Conciliation and Arbitration Commission in Amalgamated Metal Workers followed an examination of cases that considered the definition of "industrial matters" in s 4 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth), and in particular its reference to "matters pertaining to the relations of employers and employees". No such language appears in s 6 of the Act. 8. To my mind, the terms anticipated in the First Riley Letter, even if unorthodox, might well fall within the definitions in s 6 of the Act. While provisions requiring union agreement to the appointment of employees are unusual, and might give rise to debate as to whether they would constitute fair and reasonable conditions for inclusion in an award within the meaning of s 10 of the Act, they do not necessarily detract from the inherently "industrial" nature of the terms as a whole. 9. I also note the following observations by Mason J in Federated Clerks' Union (at 167): "The problem with the concept of management or managerial decisions standing outside the area of industrial disputes and industrial matters is that it does not provide a clear distinction. There are many decisions made by management which are capable of giving rise to an industrial matter and becoming the subject of an industrial dispute: see, for example, Melbourne and Metropolitan Tramways Board v. Horan (1967) 117 CLR 78; R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia (1969) 119 CLR 529 at 539-540. Whether the concept of management or managerial decisions can be sustained as an absolute and independent criterion of jurisdiction, even in the context of the Conciliation and Arbitration Act, is an important question that may require future consideration. In saying this I do not underrate the importance of the comment made by O'Connor J. in Clancy. The prospect of industrial tribunals regularly reviewing business policy decisions made by employers, and thereby controlling the economy to a substantial extent, is indeed a daunting one. On the other hand, the popular understanding of an industrial dispute extends to any dispute between employees and employers that may result in the dislocation of industrial relations, for example, by the withdrawal of labour or the introduction of work or other bans. What is more, reflection on the serious impact on the community of industrial dislocation suggests that the scope and purpose of statutes regulating conciliation and arbitration and industrial relations extend to the conferment of jurisdiction on industrial tribunals in relation to industrial disputes in their broadest conception." 1. I am not wholly persuaded by the Health Secretary's submissions that the Notification ought to be dismissed on the basis that it fails to disclose an "industrial matter". 2. However, for reasons which I will now explain, I have otherwise found against the Union. 3. As the notifier, the Union bore the onus of making out the basis for the relief it sought. On the case it presented, that required it to establish that the Riley Letters constituted a binding and enforceable agreement, either as somehow being incorporated into the Industrial Agreement or as a standalone industrial instrument within the meaning of the Act. 4. The evidence falls short of establishing that an agreement on the terms set out in the First Riley Letter was ever reached. In this regard I note the following: 1. The Statement of French C referred to a settlement which had been reached between the parties. The substance or nature of the dispute to which matter IRC 2768/95 related cannot be discerned on the evidence. In any event, the Statement expressly provided that the settlement was made "to apply during the life of the current Agreement". 2. The decision of French C refers to the "parties…now negotiating a new agreement". 3. The terms of the First Riley Letter make it clear that at the time it was written no agreement had been finalised. The opening paragraph acknowledged that the decision of French C related to "the then agreement", and referred to Mr Riley's "wish to formalise the agreement" and in particular of the need "to revisit this issue in finalising the new agreement". The letter concluded by seeking "confirmation of the BIC's acceptance of these arrangements". 4. There is no evidence of any response from Mr Butcher to this correspondence, confirming the BIC's acceptance of the terms proposed. 5. While the Second Riley Letter purported to "confirm the resolution reached" at a meeting between Mr Riley and Mr Butcher on 5 December 1997, it is not conclusive evidence of that fact, contrary to the Union's submissions. Indeed, the last sentence of the letter allows room for doubt as to whether recollections were "consistent". Further, the same sentence makes it clear that the letter was offered (on a without prejudice basis) with a view to the anticipated industrial agreement being finalised. The Union's contention that I simply accept the opening words of the letter as proof of the fact they attest to is not supported by the terms of the letter as a whole. 6. Any response from Mr Butcher to the Second Riley Letter is not in evidence. 7. Mr Riley was not called to give evidence in these proceedings. 1. Having regard to these matters, the evidence does not make out that there was an agreement at all. On this basis alone, the matter must fail. 2. For completeness, however, I will address the argument that it was agreed that the terms of the First Riley Letter were to be regarded as forming part of the Industrial Agreement, even if they were not contained within the document itself. 3. The Riley Letters predate the making of the Industrial Agreement. They make it clear that the Industrial Agreement was still being finalised and that the terms set out in the letters were being proposed with a view to its finalisation. This is inconsistent with the Riley Letters being accepted by the parties at the time as comprising some sort of contract or arrangement collateral to the Industrial Agreement. 4. Also relevant in this regard, as the Health Secretary submitted, is the fact that provisions dealing with all of the matters raised in the eight numbered paragraphs in the Second Riley Letter, with the exception of pars 1 and 5, are to be found in the Industrial Agreement. I have already referred to par 5 as essentially "calling up" the First Riley Letter. Paragraph 1 is not immediately relevant and the matter to which it relates is perhaps not, as the Health Secretary submitted, of the nature that would necessarily be included in an industrial agreement. That all other matters referred to in the Second Riley Letter are reflected in the Industrial Agreement tends to suggest that matters which had been agreed between the parties were to be, and were indeed, contained in it. 5. For these reasons I am not persuaded that the Riley Letters can be regarded as constituting some sort of collateral agreement or arrangement that was intended to form part of the Industrial Agreement. 6. I note for further completeness that the Union has not established that, even were they to have constituted an agreement, the Riley Letters are properly to be regarded as an industrial instrument, separate to the Industrial Agreement. To the extent that the Union relies on such an agreement having been made pursuant to s 26(4) of the Area Health Services Act 1986 (NSW) or s 40BA(4) of the Public Hospitals Act 1929 (NSW), there are two matters to note. 7. Firstly, as the Health Secretary submitted, each of those provisions allows for the employer to enter into an agreement "with respect to the conditions of employment (including salaries, wages and remuneration)" of the relevant employees. There is at least an argument that pars 6 and 7 of the First Riley Letter do not fall within this description and so could not have been the subject of an agreement validly made under the legislation. 8. Secondly, there is no evidence that Mr Riley had the necessary delegations under s 21 of the Health Administration Act 1982 (NSW), as referred to in s 26(3A) of the Area Health Services Act and s 40BA(3A) of the Public Hospitals Act. 9. As a final matter I observe that the Health Secretary called for the matter to be dismissed on the basis that the Union is only seeking declaratory relief; that is, a determination as to the legal force and effect of the Riley Letters. Attention was drawn to Health Services Union New South Wales v Health Secretary on behalf of Northern NSW Local Health District [2019] NSWIRComm 1055 in which I observed that the powers of the Commission under the s 175 of the Act do not stand alone, permitting applications for declaratory relief simpliciter. The power must be associated with the exercise of the Commission's other powers under the Act. 10. In light of the findings that I have made already, it is not necessary to traverse those submissions. 11. Mr Knox observed this morning that the Industrial Agreement contains no provision that regulates the employment of temporary employees. I recognise that under current arrangements temporary employment in the Broken Hill Health Service, at least in so far as the Industrial Agreement might otherwise apply, appears not to be the subject of industrial regulation. This is a matter which may be, and perhaps preferably should be, dealt with in the context of the Award Proceedings. 12. The Union is the notifier in these proceedings and bears the onus of making out the case for the relief it is seeking. Even taking the material it has filed at its highest it has failed to do so. I am not persuaded that there exists an agreement between the parties in the terms set out in the First Riley Letter. 13. No other matters arise for determination from the Union's evidence and submissions. 14. In these circumstances the only proper order is that the proceedings be dismissed, and I so order. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 March 2021