Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary, on behalf of the Department of Premier and Cabinet [2022] NSWIRComm 1010 Hearing dates: 7 March 2022 Date of orders: 7 March 2022 Decision date: 07 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Notice of Motion dismissed Catchwords: INDUSTRIAL DISPUTE – Ministerial Drivers – Logistics and Business Support Officers – restructure of Transport Service Branch of Department of Premier and Cabinet – Notice of Motion seeking to restrain restructure Legislation Cited: Government Sector Employment Act 2013 (NSW). Industrial Relations Act 1996 (NSW) Members of Parliament Staff Act 2013 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier) Industrial Relations Secretary, on behalf of the Department of Premier and Cabinet (Respondent) Representation: Counsel: Mr A Slevin (Notifier) Ms B Byrnes (Respondent) Solicitors: Mr B Trainor, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Ms S Huang, Crown Solicitor's Office (Respondent) File Number(s): 2021/00363120 Publication restriction: Nil EX TEMPORE decision 1. Before the Commission is an industrial dispute notified by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (PSA) pursuant to s 130 of the Industrial Relations Act 1996 (NSW). Background to the dispute 1. The Transport Services Branch within the Department of Premier and Cabinet has historically been responsible for providing car and driver services for the Premier, Ministers, Leader of the Opposition, the Presiding Officers, former office holders and other authorised users. Employees of the Department occupying a Ministerial Driver role perform these functions. 2. Ministerial Drivers received an out-of-hours allowance under the Ministerial Drivers Salaries and Conditions - NSW Department of Premier and Cabinet - s 130(1) Determination No. 953 of 2007 to compensate for their unusual hours and in lieu of overtime work from Monday to Saturday. 3. From around July 2021 to October 2021 the Transport Services Branch underwent a change management process in accordance with the Department's Agency Change Management Guidelines. As part of this process the Ministerial Driver role was abolished and a new role titled "Logistics and Business Support Officer" (LBSO) was created. 4. The new LBSO role had different working hours and responsibilities to the Ministerial Driver role and was to be classified as a Clerk Grade 1/2 under the Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007. As a result, the LBSO role attracted a higher base salary with access to overtime pay. However, the LBSO role would not receive the out-of-hours allowance payable to Ministerial Drivers. 5. Ministerial Drivers who elected not to accept a voluntary redundancy were placed in an LBSO role, and the Department agreed to preserve the out-of-hours allowance for them for a period of three years from 1 November 2021 to 30 October 2024 to transition Ministerial Drivers into the new LBSO role. 6. On 20 December 2021, the Premier's Chief of Staff decided to transfer the functions performed by the Department's Transport Services Branch to each of the Ministerial Offices for which car and driver services had been provided. Each Ministerial Office would be provided a budget to employ staff to perform car and driver services, and that employment would be under Part 2 of the Members of Parliament Staff Act 2013 (NSW) (the MOPS Act) and in accordance with the Ministers' Office Handbook and any written employment contract. PSA dispute notification 1. This decision gave rise to the filing of the dispute notification by the PSA which is presently before the Commission. 2. The question, dispute or difficulty identified by the PSA in the dispute notification was expressed in the following terms: A. The Logistic and Business Support Officers (LBSO) are employed by the Department of Premier and Cabinet (DPC) and provide driving services for NSW Ministers and the Leader of the Opposition. B. LBSOs are employed under the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (Award). C. This role came about recently following a Change Management Plan (CMP) that was negotiated with the Public Service Association of NSW (PSA). Prior to that, the role was referred to as a Ministerial Driver and they worked under a Determination that reverted back to the Award where silent. The Determination had an allowance that endeavoured to address the long hours the Ministerial Drivers worked and the significant availability required of them. Ministers are entitled to the services of a Driver. D. In resolving significant issues stemming from the CMP process the parties reached a grand parenting arrangement whereby the LBSOs retained the financial aspects of the Determination for a period of three years. This arrangement also covered longer term temporary employees who were made permanent. E. The parties have more recently been holding Joint Consultative Committee meetings aimed at implementation of the new working arrangements that stemmed from the CMP. Recently we were advised by the Department of Premier and Cabinet (DPC) that the matter had been put on hold and advised that other options were being considered by the Premier's Office. F. The PSA became aware that one of the options that was considered may be to move the LBSOs under the Members of Parliament Staff Act 2013 (MoPS Act) which would remove them from the Award and make them the employee of the Minister who they drive for and we note that there was no formal discussion on this. The MoPS Act allows the Premier to set conditions of employment and precludes industrial proceedings on those conditions as well as over the dispensing of services or termination of the employee. G. At approximately 5.10pm on Tuesday 21 December 2021 the LBSOs were sent an email by Ms Dobbins, Deputy Secretary, People & Operations with DPC, advising that the decision had been made to move the funding of the LBSO to the Ministers' offices and the employees under the Act and that consultation would occur in mid-January. H. Shortly after this email was sent Ms Lorentzen from DPC phoned PSA Industrial Officer Nick Player and advised him of the email. Mr Player advised of his concerns over the timing of the message and the timeframe for consultation. Mr Player also sought confirmation as to whether the consultation was also around the decision to move them to the MoPS Act and was advised it was not. I. A Joint Consultative Committee meeting that was already diarised for 23 December 2021 would now alter its agenda to focus on this matter. J. Apart from the concerns relating to security and conditions of employment are those relating to work health and safety noting that in the previous two years, and with the assistance of various consultants, policies had been developed to control the excessive and dangerous amount of hours worked by the LBSOs. Under the new employment arrangement the work health and safety of these employees will also be under severe threat. K. The PSA has sought that a consultation period commence at the beginning of February 2022, but DPC have advised that they will not change their stance on this. 1. The PSA sought the assistance of the Commission to ensure that there was proper consultation that included the decision itself on whether LBSOs are employed by DPC or the Ministers as well as an appropriate timeframe for all discussions on this matter. 2. The dispute came before the Commission (Commissioner O'Sullivan) by way of a number of compulsory conferences which were convened with a view to exploring settlement of the dispute in conciliation, however, settlement was not achieved and on 17 February 2022, Commissioner O'Sullivan issued a certificate of attempted conciliation pursuant to s 135 of the Industrial Relations Act. 3. On 18 February 2022 the PSA filed a document which set out the order sought by it in arbitration proceedings. That order was expressed as follows: A. The Notifier seeks the following order in determination of these proceedings: A direction that the Respondent refrain from terminating the Logistic and Business Support Officers presently employed by the Respondent as part of the present restructure of the Respondent's Transport Services Branch. B. This order is sought under s 136(1)(a) of the Industrial Relations Act 1996 (NSW). PSA Notice of Motion 1. On 21 February 2022 the PSA filed a Notice of Motion which sought interim relief as follows: A. The Applicant will, on a date to be fixed, move the Commission at Level 10, 10-14 Smith Street, Parramatta NSW, for interim orders pursuant to ss 136(1)(a), 136(1)(c) and 137(1)(c) of the Industrial Relations Act 1996 (NSW): 1. That the Respondent refrain from terminating the Logistic and Business Support Officers ("LBSOs") presently employed by the Respondent as part of the present restructure of the Respondent's Transport Services Branch ("TSB") until the determination of the substantive proceedings. 2. That the Respondent refrain from preparing, issuing or otherwise offering offers of employment to LBSOs on behalf of the Ministerial Offices until the determination of the substantive proceedings. 3. That the Respondent refrain from declaring any LBSOs excess as part of the present restructure of the Respondent's TSB, until the determination of the substantive proceedings. 4. Such further or other orders that the Commission considers appropriate. B. Grounds and Reasons 1. The TSB provides, inter alia, driving services to Ministers of the New South Wales Parliament. The employees that provide these services are employed as LBSOs. 2. As part of the restructure of TSB, the Respondent is deleting the LBSO role from its structure and will be transferring the funding for this role (among other things) to Ministerial Offices. The Ministerial Offices will directly employ their own drivers and the drivers will be employed under the Members of Parliament Staff Act 2013 (NSW) ("MOPS Act"). LBSOs are presently employed under the Government Sector Employment Act 2013 (NSW). 3. The LBSOs will either be terminated (if they have obtained employment with the Ministerial Offices) or declared excess on 14 March 2022. 4. The notifier is seeking permanent relief in the substantive proceedings in the form of a direction that the Respondent refrain from terminating the LBSOs presently employed by the Respondent as part of the present restructure of TSB. 5. The relief sought in the substantive proceedings will be frustrated in the event the LBSOs are terminated in the interim. 6. Once the LBSOs commence employment under the MOPS Act, the Commission will lack jurisdiction to determine the substantive proceedings per s 26(2) of the MOPS Act. Accordingly, the balance of convenience favours the making of the interim orders. 1. The Notice of Motion filed by the PSA was supported by an affidavit of Benjamin Trainor, solicitor of the PSA, which set out the background of the current dispute. 2. In addition, the PSA filed a comprehensive outline of submissions in support of the Notice of Motion together, with a witness statement of Patrick Callaghan, a former Ministerial Driver and PSA delegate, and a witness statement of Nicholas Player, Industrial Officer of the PSA. 3. The respondent to the dispute notification, the Industrial Relations Secretary on behalf of the Department of Premier and Cabinet, filed comprehensive written submissions as well as two witness statements by Samara Dobbins, Deputy Secretary, People and Operations, of the Department. 4. I have given consideration to all of the evidence and outlines of submissions as filed by the parties, as well as to the oral submissions presented by counsel today. Determination 1. It is agreed that the tests to be applied in determining the PSA's Notice of Motion are: 1. whether there is a serious question to be tried with a sufficient likelihood of success in the substantive proceedings; and 2. the balance of convenience. 1. It is my determination that the PSA's Notice of Motion be dismissed. 2. I have reached this determination on the basis that, with respect to the issue of serious question to be tried, the ultimate relief that the PSA seeks in the substantive proceedings is a direction that the respondent refrain from terminating LBSOs presently employed by it as part of the restructure of the Transport Services Branch. 3. Whether that relief be sought by way of a direction or order or recommendation from this Commission, it is my opinion that it has no realistic chance of success in the substantive proceedings. I form this opinion on the basis that it is not the role of this Commission to involve itself in the operations of government to the extent of determining how transport services should be provided to Ministers and other government officials, and by whom. 4. That is the business of government, not of this Commission, and counsel for the PSA was unable to point to any precedent where this Commission has involved itself in the operations of government to the extent being sought in this matter. I am aware of many past matters where disputes have arisen as a result of decisions taken by government which have caused concern on the part of unions. These are quite valid concerns and I do not diminish the seriousness of the matters that have been raised as of concern to the PSA and its members, but where this Commission has simply not intervened to effectively overturn a decision taken by the elected government. I refer by way of example only to the decision of the previous State government to privatise the Parklea Correctional Centre. Any attempt by the PSA, or any other body, to have sought relief from this Commission by way of an order, direction and/or recommendation to effectively overturn a decision such as that would also have been doomed to fail. 5. With respect to the balance of convenience, it is my view that certainty needs to be established so that the LBSOs that are currently considering options available to them can make their decisions knowing what the consequences of those decisions will be, for example, whether or not to accept an offer of employment with a Ministerial Office or to pursue other options that are available, such as being declared excess, seeking employment elsewhere in the public sector or accepting voluntary redundancy. 6. For these reasons it is my determination that the PSA's Notice of Motion be dismissed. 7. I so order. John Murphy Commissioner ********** Amendments 11 March 2022 - Amendment to coversheet 19 April 2022 - Corrected a spelling error in paragraph 15 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: 19 April 2022