Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales [2021] NSWCA 64 Hearing dates: 24 March 2021 Decision date: 23 April 2021 Before: Bathurst CJ; Bell P; Leeming JA. Decision: 1. Amended summons dated 16 March 2021 dismissed, with costs. 2. Order 1 is not to affect the position of the eighth and ninth defendants as to costs. Catchwords: ADMINISTRATIVE LAW – jurisdictional error – challenge to determinations of Industrial Relations Commission – whether plaintiffs were denied procedural fairness – whether Commission failed to have regard to relevant consideration – whether Commission erred in placing onus on moving parties – whether decision was legally unreasonable Legislation Cited: Fiscal Responsibility Act 2012 (NSW) Industrial Relations Act 1996 (NSW), ss 3, 10, 17, 146, 146C, 179 Industrial Relations (Public Sector Conditions of Employment) Amendment (Temporary Wages Policy) Regulation 2020 (NSW) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW), cll 4, 6, 9 Interpretation Act 1987 (NSW), s 41 Subordinate Legislation Act 1989 (NSW), ss 10, 11 Subordinate Legislation (Postponement of Repeal) Order 2020 (NSW) Subordinate Legislation (Postponement of Repeal) Order (No 2) 2019 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: Aidon v Minister for Aboriginal Affairs of New South Wales (2006) 145 LGERA 67; [2006] NSWLEC 169 Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters [2020] NSWIRComm 1044 Application for Crown Employees (Public Sector – Salaries 2020) Award and Other Matters (No 3) [2020] NSWIRComm 1077 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 Goodwin v Commissioner of Police [2012] NSWCA 379 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment (2012) 250 CLR 343; [2012] HCA 58 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 State Wage Case 2019 [2019] NSWIRComm 1065 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (First plaintiff) New South Wales Nurses and Midwives' Association (Second plaintiff) Industrial Relations Secretary (First defendant) Health Secretary (Second defendant) Commissioner of Police (Third defendant) Chief Commissioner of the Independent Commission against Corruption (Fourth defendant) Landcom (Fifth defendant) Auditor-General (Sixth defendant) Industrial Relations Commission of New South Wales (Seventh defendant) Health Services Union NSW (Eighth defendant) Australian Salaried Medical Officers Federation (Ninth defendant) Representation: Counsel: M Gibian SC, A Slevin (Plaintiffs) I Taylor SC, M Easton, Z Heger (First to sixth defendants)