Australian Services Union of NSW & Ors v Transport Secretary (Transport for NSW) (No 2) [2021] NSWIRComm 1100

Industrial Relations Commission New South Wales Medium Neutral Citation: Australian Services Union of NSW & Ors v Transport Secretary (Transport for NSW) (No 2) [2021] NSWIRComm 1100 Hearing dates: 7 and 8 October 2021, 5 November 2021 Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Order that the proceedings be dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award to maintain terms previously enjoyed by employees under enterprise agreements made pursuant to the Fair Work Act 2009 – whether sufficient certainty in the terms of the award sought – whether employer should be held to the bargain reflected in the enterprise agreements, when not a party to those agreements – whether employer bound to act in keeping with past practice of government agencies to maintain terms of employees in the event of a transfer of employment – whether there is a sufficient nexus between the past practice and the circumstances of the present case Legislation Cited: Fair Work Act 2009 (Cth) s 14, Pt 6-3A Government Sector Employment Act 2013 Industrial Relations Act 1996 ss 3, 10, 15, 130, 146, 146C, 163 Transport Administration Act 1988 ss 36, 37, 64A, 64D, 66, 67, 68B Cases Cited: Applications for Variations to Crown Employees (Police Officers – 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council (2000) 101 IR 143; [2000] FCA 1231 Australian Services Union of NSW & Ors v Transport Secretary (Transport for NSW) [2021] NSWIRComm 1059 City of Sydney Wages/Salary Award 2014 (2014) 247 IR 386; [2014] NSWIRComm 49 George Hudson Ltd v Australian Timber Workers Union (1023) 32 CLR 413 Staff Specialists (State) Award 2008 [2009] NSWIRComm 44 United FM Group Services Pty Limited trading as United KFPW v National Union of Workers, New South Wales Branch [2006] NSWIRComm 391 Texts Cited: Nil Category: Principal judgment Parties: Australian Services Union of NSW (First Applicant) Rail, Tram and Bus Union of New South Wales (Second Applicant) The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch) (Third Applicant) Transport Secretary (Respondent) Public Service Association and Professional Officers' Association Amalgamated Union of NSW (Intervenor) Representation: Counsel: T Slevin of Counsel (Applicants) M Baroni of Counsel (Respondent) F Anwar (Intervenor) Solicitors: Slater & Gordon Lawyers (Applicants) File Number(s): 2021/181939, 2021/183351 and 2021/185379 Publication restriction: No