Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Transport for NSW [2021] NSWIRComm 1033

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Transport for NSW [2021] NSWIRComm 1033 Hearing dates: 2 December 2020 Date of orders: No orders made Decision date: 23 April 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Two PSA delegates are entitled to paid special leave to travel from Sydney to home on 17 September 2020 Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – dispute notification – award interpretation – special leave – attendance at union meetings – travel to and from meetings Legislation Cited: Industrial Relations Act 1996 Cases Cited: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 Fire Brigade Employees' Union of NSW v Fire And Rescue NSW [2020] NSWIRComm 1022 George A. Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Kucks v CSR Ltd (1996) 66 IR 182 Texts Cited: Nil Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier/Applicant)

Transport for NSW (Respondent) Representation: Ms L Saunders of counsel (Notifier/Applicant)

Ms C Lenard, solicitor, Kingston Reid (Respondent) File Number(s): 2020/00267114 Publication restriction: Nil

DECISION 1. On 10 September 2020 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") notified the Commission of an industrial dispute pursuant to section 130 of the Industrial Relations Act 1996 ("Act"). The respondent to the dispute notification was Transport for NSW ("TfNSW"). The subject matter of the dispute was a claim by the PSA on behalf of two of its delegates, David Illingworth and Tim Smith, for two days paid special leave to attend an upcoming meeting of the PSA State Council ("Central Council"). The response from TfNSW was that there was no entitlement to special leave for the second of the two days claimed in the particular circumstances of this case. 2. The PSA based its claim on clause 8.7 of the Roads and Maritime Services Consolidated Salaried Award 2019 ("Award") which is in the following terms: 8.7 Special leave with pay will be granted for the following activities undertaken by a Union delegate as specified below: (a) annual or biennial conferences of their own Union, Unions NSW or the Australian Council of Trade Unions (ACTU); (b) attendance at meetings called by Unions NSW involving the Unions which requires attendance of a delegate; (c) attendance at their Unions National Executive, State Executive, Divisional Committee of Management (or equivalent), National Council or State Council; (d) giving evidence before an Industrial Tribunal or in another jurisdiction in proceedings as a witness for the Union, briefing counsel, appearing as an advocate on behalf of a Union or assisting Union officials with preparation of cases; and (e) attendance at meetings as a member of a vocational or industry committee. 1. The upcoming meeting was the Central Council Planning Day which was scheduled for Wednesday 16 September 2020 from 10.00am to 5.00pm at PSA House in Clarence Street, Sydney, to be followed by a dinner that evening. The PSA claimed that "this extraordinary meeting is in lieu of the PSA Annual Conference usually scheduled for three days". 2. The two delegates concerned both live in the Hunter District, some three hours travelling time from PSA House. The claim for the second day of special leave on Thursday 17 September 2020 was for them to return home after spending the previous night in Sydney. 3. The position of TfNSW was that the two delegates had an entitlement pursuant to subclause 8.7(c) of the Award to special leave to attend the Central Council Planning Day on 16 September 2020, but there was no entitlement to special leave for them to travel home the following day. TfNSW also relied upon one of its own policy documents entitled "Special Leave Procedure" ("Procedure") which, at section 3.3.13.2, stated that approval for the grant of special leave is subject to: - operational requirements - release of the minimum practical number of delegates - travel, meals or accommodation are not reimbursed by TfNSW - the activity does not extend beyond your standard hours for the day. 1. Following notification of the dispute, a compulsory conference was held before Chief Commissioner Constant on 15 September 2020. The matter did not settle and the Chief Commissioner issued a certificate of attempted conciliation pursuant to section 135 of the Act on that day. 2. On 22 September 2020, the PSA filed a document in the Commission entitled "Application under s136 and s175 of the Industrial Relations Act" ("Application"). The Application contained the following: In accordance with the directions of Chief Commissioner Constant dated 15 September 2020 the Applicant seeks the following: · The question to be determined at the hearing is: 1. Does the granting of special leave with pay to undertake activities by a union delegate under clause 8.7 of the Roads and Maritime Services Consolidated Award 2019 ("the RMS Award") include reasonable travelling time to and from the activities referred to in the clause? Orders Sought and form of Orders: 2. The PSA seeks an interpretation of clause 8.7 of the RMS Award under section 175 of the Industrial Relations Act 1996 for the purposes of determining the dispute before it in the proceedings. 3. The PSA seeks an order that the granting of special leave under clause 8.7 of the RMS Award includes reasonable travelling time to and from the activities referred to in the clause. 1. The matter was subsequently allocated to me for hearing which occurred on 2 December 2020.