Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary of the Department of Education v Australian Education Union of New South Wales Teachers Federation Branch [2022] NSWIRComm 1049 Hearing dates: 29 June 2022 Date of orders: 29 June 2022 Decision date: 04 July 2022 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan, and Commissioner Webster Decision: Leave to appeal is refused Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision not to make dispute orders – whether leave to appeal ought to be granted Legislation Cited: Industrial Relations Act 1996 ss 130, 135, 137, 187, 188 Industrial Relations (Public Sector Conditions of Employment) Amendment Regulation 2022 Teaching Service Act 1980 s 44 Cases Cited: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 House v The King (1936) 55 CLR 499; [1936] HCA 40 Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Industry and Investment [2010] NSWIRComm 121 Wei Fen Xian and Rail Corporation New South Wales [2010] NSWIRComm 46 Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 Texts Cited: Nil Category: Principal judgment Parties: Secretary of the Department of Education (Appellant) Australian Education Union of New South Wales Teachers Federation Branch (Respondent) Representation: Counsel: H Pararajasingham (Appellant) S Crawshaw SC, M Gibian SC and L Saunders (Respondent) Solicitors: Crown Solicitor (Appellant) New Law (Respondent) File Number(s): 2022/00188373 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: Decision delivered ex tempore on transcript Date of Decision: 27 June 2022 Before: Commissioner O'Sullivan File Number(s): 2022/00182963 decision 1. On 23 June 2022, the Secretary of the Department of Education ("Secretary") notified the Commission of an industrial dispute ("Dispute") involving the Australian Education Union of New South Wales Teachers Federation Branch ("Federation"), pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). The Dispute related to industrial action which the Federation had announced its members would be taking on 30 June 2022. The Secretary sought orders to prevent that industrial action from taking place. 2. On 27 June 2022, Commissioner O'Sullivan conducted an arbitration of the Dispute, and handed down his decision ex tempore ("Decision"). In short, the Commissioner made only limited orders, requiring that School Counsellors not take industrial action on 30 June 2022. He declined to make the orders sought by the Secretary, which would have extended to all members of the Federation employed in the Teaching Service (within the meaning of s 44 of the Teaching Service Act 1980). 3. On 28 June 2022, the Secretary filed an application for leave to appeal and appeal in respect of the Decision, pursuant to s 187 of the Act ("Appeal"). 4. The Appeal was listed for hearing before the Full Bench on an urgent basis. The hearing took place in the evening of 29 June 2022. Having heard from the parties, and with the benefit of written submissions which the parties had provided to the Commission in advance of the hearing, the Full Bench handed down its decision, which was to refuse leave to appeal. The Full Bench informed the parties that the reasons for its decision would follow. 5. These are those reasons. Principles on leave to appeal 1. Pursuant to s 188 of the Act an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 2. The principles governing leave to appeal are well-established: see, for example, Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 at [22]-[26]. There was no controversy as to those principles and we will not rehearse them at length. 3. For present purposes, we note the following in particular: 1. the provisions of the Act as to appeals give primacy to first instance decision making: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392; 2. leave to appeal will not be lightly or automatically granted: King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 at [52]; 3. the public interest considerations under s 188(2) of the Act need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application: Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576; (1999) 95 IR 380 at 382 ("Knowles"); and 4. appeals are solely to correct error. In an appeal challenging the exercise of a discretion (such as the present case) the appellant must, if leave to appeal is to be granted, demonstrate error in the exercise of the discretion of the nature contemplated in the principles enunciated by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. Factual context 1. On Tuesday, 21 June 2022 the Secretary became aware that the Federation was organising industrial action for 30 June 2022. She did not immediately notify a dispute to the Commission. Rather, on Thursday, 23 June 2022 a letter was sent to the Federation seeking a commitment that the industrial action would not proceed. 2. Later on 23 June 2022, the Secretary notified the Commission of the Dispute. The matter was listed for compulsory conference before Commissioner O'Sullivan at 5.30pm that day. The conference concluded on the basis that the parties would meet on Friday, 24 June 2022 in an effort to resolve the Dispute. 3. The proceedings were listed for report back before Commissioner O'Sullivan at 10.00am on Monday, 27 June 2022. Further conciliation immediately ensued and, when that failed to resolve the Dispute, the Commissioner issued a certificate pursuant to s 135 of the Act. The proceedings moved into arbitration before the Commissioner on the afternoon of 27 June 2022. Commissioner O'Sullivan handed down the Decision ex tempore at approximately 7.00pm that day. 4. The Appeal was filed with the Registry by email received at 4.36pm on 28 June 2022. 5. The transcript of the arbitration before Commissioner O'Sullivan and of the Decision was not received until mid-morning on 29 June 2022. 6. The Appeal was heard and determined by the Full Bench on 29 June 2022, in a hearing commencing at 4.30pm. Consideration 1. As the plurality in House v The King made clear, the question on appeal was not whether the members of the Full Bench considered that, if they had been in Commissioner O'Sullivan's position, they would have taken a different course and decided the Dispute differently. It was for the Secretary to demonstrate that an error was made by the Commissioner in exercising his discretion, and that such error warranted correction by the Full Bench. For the reasons which follow, we were not persuaded that the Secretary had established such error. 2. Further, on a proper reading of the Decision we did not consider that the Appeal raised substantial issues of principle or law or had wider implications for the jurisprudence of the Commission. In saying this, we recognised that the Secretary was placed in the position of having to file the Appeal without the benefit of transcript of the proceedings before Commissioner O'Sullivan or his reasons for the Decision. The Secretary relied on an "unsworn affidavit" of Margaret Coory, a solicitor in the Crown Solicitor's Office, dated 28 June 2022 in which Ms Coory set out her recollection of the reasons given by Commissioner O'Sullivan in making the Decision. In her submissions the Secretary purported to reserve her "rights" to add to or vary her submissions following receipt of the transcript. 3. As might be expected, and without suggesting any criticism, there were some inconsistencies between Ms Coory's recollection and the precise reasons set out in the Decision. We may have been more inclined to grant leave had the Decision reflected Ms Coory's understanding of Commissioner O'Sullivan's reasons. Grounds of appeal 1. The grounds of appeal set out in the Secretary's application for leave to appeal and appeal were: "1. Commissioner O'Sullivan was mistaken about the status of the substantive dispute (proceedings 00342993 of 2021) currently before the Commission for arbitration. 2. Commissioner O'Sullivan failed to take into account, or otherwise adequately take into account, that the substantive dispute (proceedings 00342993 of 2021) is currently before the Commission for arbitration. 3. Commissioner O'Sullivan failed to exercise the function of the Commission as per ss. 146(1)(b) and 146(2) of the Act. 4. Commissioner O'Sullivan failed to take into account, or otherwise adequately take into account, the evidence of Ms Clare Archibald. 5. Commissioner O'Sullivan mistakenly construed the effect of the Industrial Relations (Public Sector Conditions of Employment) Amendment Regulation 2022. 6. Commissioner O'Sullivan took into account extraneous or irrelevant matters, including a purported 'right to strike', in exercising the functions of the Commission. 7. The decision of Commissioner O'Sullivan is unreasonable or plainly unjust because of, among other things: a. the significant impact and disruption the imminent industrial action will cause; and b. the substantive dispute (proceedings 00342993 of 2021) is currently before the Commission for arbitration." 1. We will address these grounds in turn. Grounds 1 and 2 1. The Secretary dealt with these grounds together. In essence, the Secretary's contentions can be distilled to these propositions: 1. There is currently before the Commission an application by the Secretary for a new award, the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2022 (proceedings 2021/00342993). 2. Evidence was led by the Secretary in the proceedings below that she was seeking to ascertain "the impact of any subordinate legislation (such as the Industrial Relations (Public Sector Condition of Employment) Amendment Regulation 2022))" on the bargaining process, and that the Secretary "intended to revert to the [Federation], with a view to continuing constructive discussions". 3. The Commissioner ought to have intervened to prevent industrial action from occurring in respect of matters before the Commission. Such an approach would have been consistent with the observations of Commissioner Sloan in Industrial Relations Secretary v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2022] NSWIRComm 1042 ("PSA Case") at [25]-[29], and with his findings in respect of school psychologists at [44] in that case. 1. None of these contentions is support for the finding of the errors asserted in grounds 1 and 2. 2. In the Decision, Commissioner O'Sullivan referred to the "relevant award, which is listed for hearing sometime later this year". He also referred to an argument advanced by the Secretary in reliance on the PSA Case, which was to the same effect as summarised at [20(3)] above. He stated that he "had also had regard to the fact that there is no programmed conciliation before this Commission in relation to the wages claim of the Federation". 3. The Secretary submitted, and we accepted, that Commissioner O'Sullivan was mistaken in his understanding of the outcome of the PSA Case. In the Decision he referred to the PSA Case at [44] in which Commissioner Sloan observed: "44. I determined to include School Psychologists in the Order as their award is presently the subject of proceedings before the Commission. With the Commission's jurisdiction having been invoked, I do not consider it appropriate that School Psychologists engage in industrial action." 1. Commissioner O'Sullivan went on to observe: "That was a reference to the school psychologists. Commissioner Sloan was minded not to make orders in relation to it." 1. The last observation was incorrect. Commissioner Sloan bound the school psychologists to his order on the basis that their award was before the Commission. The Secretary was seeking that Commissioner O'Sullivan take the same approach. On the assumption that the transcript is accurate, Commissioner O'Sullivan erred in this respect. That error did not, however, vitiate the Decision or warrant the granting of leave to appeal. The Commissioner was not bound to follow the approach taken by Commissioner Sloan in the PSA Case in respect of school psychologists. 2. As at the date of the Decision, Commissioner O'Sullivan's (albeit brief) outline as to the status of matter 2021/00342993 was correct. No conciliation had been programmed and it was anticipated that the matter would be the subject of an arbitrated hearing later in 2022. The alleged "mistake" on which ground 1 was founded was not made. 3. Ground 2 also lacked substance. It is clear on the face of the Decision that the Commissioner did take into account the fact that matter 2021/00342993 was before the Commission and, further, that the Secretary placed reliance on that fact. 4. Further in respect of ground 2, we accepted the Federation's submissions that an assertion that the Commissioner did not "adequately take into account" the fact that matter 2021/00342993 was before the Commission does not disclose error. In its Outline of Submissions, the Federation contended: "18.18 Secondly, in the absence of a statutory mandate as to the weight to be given to various relevant considerations, the weight to be given to them is entirely a matter for the primary judge. For example, in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, Gummow ACJ, Kirby, Hayne and Heydon JJ said (at [138]): The question is what the particular statute or rule of law conferring the discretion contemplates as relevant or irrelevant factors. If it mandates that particular weight be given to one factor, that mandate must be obeyed. But, in the absence of any such mandate, the question of what weight the relevant factors should be given or what balance should be struck among them is for the person on whom the discretion is conferred … 19.19 It is to be steadily borne in mind that it is insufficient merely to establish that insufficient weight has been given to a particular matter: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419 at [20]; Haselhurst v Toyota Motor Corporation Australia Ltd (t/as Toyota Australia) [2020] NSWCA 66 at [125]." (Emphasis and italics in original) 1. The weight to be attached to a particular matter raised in the proceedings was within the discretion of the Commissioner. It was not sufficient for the Secretary to assert that the Commissioner ought to have afforded more weight to the issue. Ground 3 1. The Secretary asserted that Commissioner O'Sullivan failed to have regard to relevant evidence and matters required by the Act and thereby did not exercise the functions of the Commission, as required by ss 146(1)(b) and 146(2) of the Act. On this basis, it was said that the Commissioner erred. 2. In her Outline of Submissions, the Secretary submitted: "26. As earlier identified, these provisions mandate that the Commission take into account the public interest in the exercise of its functions (including the function to resolve industrial disputes) as well as the objects of the Act and the state of the economy of New South Wales, and the likely effect of its decisions on that economy. 27. The subject matter of the Proceedings relates to imminent industrial action in the form of, among other things, a 24-hour strike that, according to Ms Archibald, would impact the entirety of the education sector – 2,219 schools and approximately 800,000 students and 90,000 teachers. 28. Ms Archibald's evidence, which was not queried in cross-examination, further stated that the imminent action would, among other things: (a) be particularly disruptive as it would amount to the second 24-hour strike in less than two months; (b) unsettle any momentum in the sector since in-person classes had resumed after the pandemic; (c) impact access to school counselling services at a critical time of term; (d) coincide with the end of semester one and thereby impact ongoing assessments; (e) result in less teaching time for HSC students who only have 11 weeks of face-to- face teaching time; (f) disrupt activities organised for "NADOC" [sic] week; and (g) impact on the ability of parents and carers to undertake employment if their child's school is non-operational because it is unable to provide minimal supervision. 29. Further, it was put to Commission O'Sullivan that the aforementioned impacts of the industrial action, as well as the larger negative effect on the economy of NSW, could be taken on judicial notice. 30. As noted in the Coory Affidavit, in making the Decision, Commissioner O'Sullivan failed to have regard to such factors and thereby did not exercise the functions of the Commission as per ss.146(1)(b) and 146(2). On this basis, Commissioner O'Sullivan erred." 1. Section 146(1)(b) of the Act is in these terms: 146 General functions of Commission (1) The Commission has the following functions— … (b) resolving industrial disputes, 1. As the Federation submitted, the provision is descriptive rather than operative in nature. It does not require any particular action by the Commission. Stripped to its essence, the Secretary's submission amounted to an assertion that she does not regard the dispute to have been resolved, and so the Commissioner had not discharged his functions under s 146(1)(b). However, the resolution of an industrial dispute may, but need not, entail the making of orders to stop industrial action. 2. A proper reading of the Decision demonstrates that Commissioner O'Sullivan was cognisant of the requirements of s 146(2) of the Act. He made reference to the subsection (and the objects of the Act set out in s 3), albeit in the context of summarising the Secretary's submissions. He referred to the Secretary's evidence in these terms: "In relation to the 24 hour stoppage to take place on 30 June 2022 the Notifier submitted that the likely impacts are to be found in the evidence of Ms Archibald, in particular paras 88 through to 97 of that affidavit. It was submitted that Ms Archibald's evidence of this impact or these impacts should be accepted given her position with the Notifier's operations and the length of service and discussions that she allegedly had which are with various principals and persons within the Notifier's operations which were listed at paras 15 and 52 of her affidavit. It was further submitted that the Commission was entitled to take judicial notice of the alleged likely impacts of the proposed action as set out in the affidavit of Ms Archibald." 1. The Commissioner subsequently concluded: "In terms of reaching that decision I have considered the evidence of Ms Archibald, and I accept that there will be some adverse impact as noted by her in her affidavit. But I do not accept that it will be to the extent as set out in that affidavit." 1. To the extent that ground 3 was founded on the assertion that Commissioner O'Sullivan failed to have regard to the evidence of Ms Archibald and, by that omission, failed to have regard to the public interest as required by s 146(2), it was not borne out by the terms of the Decision itself. Ground 4 1. Ground 4 contended that Commissioner O'Sullivan "failed to take into account, or otherwise adequately take into account, the evidence of Ms Clare Archibald". For the reasons already stated, there was no substance to the contention that the Commissioner failed to take Ms Archibald's evidence into account. 2. As to the alleged failure of the Commissioner to "adequately take into account" Ms Archibald's evidence, we repeat [28]-[29] above. Ground 5 1. Ground 5 contended that Commissioner O'Sullivan mistakenly construed the effect of the Industrial Relations (Public Sector Conditions of Employment) Amendment Regulation 2022 ("Regulation"). In her Outline of Submissions, the Secretary submitted: "40. Accordingly, as indicated in the Coory Affidavit, Commissioner O'Sullivan's view that effectively, the Regulation does not, practically, provide any such scope for the Commission to assist the parties or otherwise does not warrant any further conciliation or dealings between the parties, is mistaken. On such grounds, Commissioner O'Sullivan erred." 1. Nowhere in the Decision does the Commissioner express the view attributed to him by the Secretary. This ground was based on a misapprehension of the Decision, and may have been the product of the Secretary not having transcript available to her before filing the Appeal. 2. During the hearing of the Appeal, Mr Pararajasingham of counsel, who appeared for the Secretary, had the following exchange with the Full Bench: [1] "SLOAN C: Yes. But your grounds of appeal, with respect, it's your ground of appeal that the Commissioner mistakenly misconstrued the effect of the regulation, and I can't see where he construes it at all, much less mistakenly does so. PARARAJASINGHAM: Commissioner, in circumstances whereby he's described its substantive content, but hasn't then taken the step to ascertain its application to the particular industrial bargaining dispute before him, we say that's a basis of the error. SLOAN C: But that's not the error asserted. Not that he failed to apply it properly. He mistakenly construed the effect of it, and he hasn't, to my reading of the decision, correct me if I'm wrong, but he hasn't construed it at all. PARARAJASINGHAM: Commissioner, in circumstances whereby his deliberation on that notion are as brief as what's noted in p 2, and he hasn't gone beyond recognising or hasn't articulated what the effect of that regulation is, namely that it opens up a channel for further negotiations, we submit that he did misconstrue its affect by essentially confirming in his decision that it didn't give rise to any further negotiation. I think that's as far as I can take that submission, Commissioner. SLOAN C: Where do you say he says that? PARARAJASINGHAM: Commissioner, in the first paragraph of p 2 he deals with the scope of the regulation in the paragraph commencing, 'Further conciliation'. SLOAN C: Yes. PARARAJASINGHAM: And then if I can take you to the page before, he notes as well that there was no offer made by the notifier in relation to the Federation's claim. Commissioner Sloan, in circumstances whereby those two assertions are made, and then he later contends that there's no room for ‑ or there's no conciliation listed in the substantive proceedings, what can be deduced from that, and frankly I think the appellant is required to do that in circumstances where the reasons are so brief, for the reasons earlier noted, the error we say is there. He did not in circumstances where it was repeatedly brought to the attention the capacity of the regulation, and the effect the regulation can have, the fact that he did not engage with that proposition indicates a mistaken understanding as to its effect. Commissioner Sloan, if it was the case that it was not articulated or brought sufficiently to Commissioner O'Sullivan's attention, then I think the assertion you've made would have some weight behind it. But in circumstances where it was continually put to him as indicated in the example that I gave, that the regulation opened up an avenue for the parties, the fact that he simply noted what the scope of it was, but did not acknowledge the fact that that is the manifest effect of the regulation, we say bears the error." 1. We acknowledge that the Decision is brief, and that Commissioner O'Sullivan did not articulate to any significant degree his process of reasoning. However, the Commissioner had before him an application for dispute orders which, in the circumstances, needed to be dealt with expeditiously. He handed down his decision and reasons ex tempore. It could not have been expected that he would deal exhaustively with all of the evidence and submissions in the proceedings. Even so, the brevity of the Decision did call for a careful analysis of its terms to ascertain the Commissioner's reasons. 2. The effect of the Secretary's submissions is that in having mentioned the Regulation (in passing), and subsequently making the factual observation that at that time no conciliation had been programmed in matter 2021/00342993, it can be inferred that the Commissioner misconstrued the effect of the Regulation in the manner described at par 40 of her submissions. This is not an inference that we consider is reasonably open from the facts on which the Secretary relies. Even to the extent that the inference is capable of being drawn, it is by no means an inescapable one. Ground 6 1. Ground 6 contended that Commissioner O'Sullivan took into account extraneous or irrelevant matters, including a purported "right to strike", in exercising the functions of the Commission. We observe that while the ground referred to "matters" in the plural, the Secretary only advanced arguments by reference to the Commissioner's consideration of a "right to strike". 2. In her Outline of Submissions, the Secretary contended: "42. It is submitted that the Commissioner's endeavour amounts to an extraneous or irrelevant consideration in circumstances whereby: (a) no explicit 'right to strike' is endorsed, at least in the context of the state industrial relations system; and (b) in any event, the matters guiding the functions of the Commission are enumerated in the Act and do not canvass, in any way, a purported 'right to strike'. 43. Any purported obligations that may emerge from international conventions pertaining to the 'right to strike' have not, at least substantively, been incorporated into municipal law and should not shape the Commission's exercise of its authority under the Act. 44. Commissioner Sloan in the PSA Decision at [36] to [37] noted: '[36] I had regard to the PSA's submissions regarding workers' alleged "right to strike". Given that the Commission had before it proceedings that were brought on an urgent basis for dispute orders, this was not the case in which to attempt to postulate a concluded view as to the existence of such a right. [37] Suffice it to say, to the extent that such a "right" exists (if at all), it is clearly and expressly subject to the Act. It could not operate as a fetter on the Commission's powers and discretions under the Act.' 45. Further, and in any event, in exercising its functions, the Act clearly specifies at s.146(2) that: '(2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to— (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy.' 46. The Act enumerates, in a complete and comprehensive manner, the relevant considerations that the Commission is to take into account when exercising its powers and discretions. Any purported 'right to strike' is not specified. 47. In the premises, by basing the Decision, at least to a significant degree, on a purported 'right to strike', Commissioner O'Sullivan took into account an extraneous or irrelevant matter when exercising the functions of the Commission. On such grounds, Commissioner O'Sullivan erred." 1. In the Decision, the Commissioner observed: "Furthermore, and I agree with the submissions to a limited extent of the respondent in terms of the exercise of the discretion would interfere with the submitted rights recognised internationally to strike. In the absence of any submissions from the notifier that there is in fact no provision or any provision that prohibits the right to strike I am left in the position of considering that there is substance to the respondent's submissions with respect to the existence of the international rights, and I note the written submissions in the cases as set out by the respondent in that regard." 1. The Federation's written submissions in the proceedings before Commissioner O'Sullivan dealt at length with the various sources which it contended gave rise to a "right to strike" recognised in international law. The Federation further submitted in the proceedings below: "19. The Commission must give consideration to Australia's international obligations, including the recognition of the right to strike, when exercising the discretion it has to make dispute orders under s 137(1)(a) of the Act. … 29. Thirdly, in this case at least, it is not suggested that the internationally recognised right to strike acts as a fetter on the Commission's powers and discretions but rather that it is a matter to be taken into account in exercising the discretion." 1. On a proper reading of the Decision, the Commissioner did no more than the Federation suggested: in exercising his discretion he had regard to "the submitted rights recognised internationally to strike". He did not positively find that such a right has been "incorporated into municipal law" or that workers in New South Wales enjoy such a right. 2. On the Secretary's case, though, even to that extent the Commissioner erred in that he took into account "an extraneous or irrelevant matter". The Secretary's case was premised in large part on the contention that s 146(2) of the Act "enumerates, in a complete and comprehensive manner, the relevant considerations that the Commission is to take into account when exercising its powers and discretions". As the "right to strike" is not specified in the provision, the Commissioner fell into error in having regard to it. 3. We reject the Secretary's contention that s 146(2) "completely and comprehensively" articulates the matters to which the Commission may have regard in exercising its functions. The section provides that the Commission, in exercising its functions, must take into account the public interest. It does not state that the Commission may only have regard to the public interest. 4. Further, while the objects of the Act and the state of the economy of New South Wales are matters to which the Commission must have regard when considering the public interest, there is nothing to suggest that they are the only matters to which the Commission can have regard. In any event, there was no inherent conflict between Commissioner O'Sullivan having regard to "rights recognised internationally to strike" and the objects of the Act. We note in particular the objects of providing a framework for the conduct of industrial relations that is fair and just (s 3(a)) and encouraging participation in industrial relations by representative bodies of employees and employers (s 3(d)). 5. The approach urged by the Secretary was not borne out by the terms of the Act as a whole, or by decades of jurisprudence of the Commission. We agreed with the following oral submissions of Mr Gibian SC, who appeared for the Federation: [2] "Now, we accept that a right to strike is not codified in an absolute sense in New South Wales industrial legislation. What my learned friend would have to say to succeed in this submission is that the Act prohibits the commission when it is exercising discretions in dealing with industrial disputes from taking into consideration international human rights or labour standards. It is a proposition which is only have to be stated to be rejected." [sic] 1. Further, we accepted the following contentions in the Federation's Outline of Submissions: "17. Firstly, reference to an irrelevant consideration is reference to a consideration which the primary decision-maker was prohibited from taking into account; conversely, reference to a relevant or material consideration is a consideration which the primary judge was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. As such, the Commissioner would not fall into error by taking a consideration into account unless the statute, expressly or impliedly, prohibited him from doing so. Similarly, the Commissioner would not err in failing to consider a matter unless the statute strictly required him to take that consideration into account as a condition of the exercise of power." Ground 7 1. Ground 7 drew on the second "limb" in House v The King (at 505): "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 1. The Secretary drew our attention to Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, in which Gleeson CJ, Gummow, Hayne and Callinan JJ observed: "25. As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? …" (Footnote omitted) 1. In her Outline of Submissions the Secretary contended: "48. It is submitted that the Decision of Commissioner O'Sullivan is unreasonable or plainly unjust because of, among other things: (a) the imminent industrial action will cause significant impact and disruption which has the potential to create safety and welfare risks, beyond the inevitable inconvenience that it will cause residents of NSW. As such, the Commission should intervene 'to protect the public interest from the damaging effects of industrial action'. Indeed the effects are plainly evident in the Archibald Affidavit. Significant regard must be given to Ms Archibald's evidence in circumstances whereby she is a senior representative of the Department of Education, has extensive experience in this sector, has worked closely with school principals to assess the impact of two previous identical iterations of industrial action, and has been intimately involved in this particular bargain. Further, and in the alternative, in any event, the Commission can also take judicial notice of the manifest effects that a 24-hour strike by teachers across 2,219 schools will have on the public interest as well as the state of the economy of NSW; (b) the substantive dispute (proceedings 00342993 of 2021) is currently before the Commission for further conciliation and arbitration. In circumstances whereby the Appellant has invoked the Commission's jurisdiction, it is inappropriate for such significant industrial action to transpire; (c) further to (b) above, the Respondent has not sought to bring proceedings for a new award before the Commission or otherwise invoke the Commission's assistance. If the Respondent is inclined to press its various claims, the appropriate course would be to notify an industrial dispute as per s.130 as opposed to engaging in industrial action which, for the second time in two months, will cause significant disruption; and (d) the Appellant has indicated its readiness, willingness and ability to substantively engage with the Respondent and therefore industrial action is not appropriate. Herein it is noted that Commissioner O'Sullivan was seemingly critical of the Appellant's failure to articulate an offer to the Respondent in relation to the industrial bargain. It is respectfully submitted that in circumstances whereby the Regulation was only published on Friday and the Appellant is urgently considering the impact of the Regulation (and has clearly informed the Respondent of this), Commissioner O'Sullivan's view is misguided and fails to recognise the reality of public sector bargaining. 49. On such grounds, the Decision of Commissioner O'Sullivan and notably his refusal to extend the scope of any order restraining and ceasing industrial action on 30 June 2022 to teachers, is unreasonable and plainly unjust." (Emphasis in original, footnote omitted) 1. In its Outline of Submissions the Federation contended: "48. The correct approach to the concept of a decision being so unjust as to warrant appellate intervention absent express error was considered by a Full Bench of the Fair Work Commission in Lawrence v Coal & Allied Mining Services [2010] FWAFB 10089, which observed at [38]: Rather, we have in mind a case where the outcome is so at odds with what the Full Bench considers a proper outcome that the epithet 'manifest injustice' can properly applied. Such a conclusion will only be reached in rare cases. 49. As to unreasonableness, again the threshold is higher than put by the Applicant. It requires instead an outcome which 'lacks an evident and intelligible justification': Minister for Immigration and Citizenship v Li [2013] HCA 18 at 76 per French CJ. 50. This is not made out here. The circumstances relied on by the appellant were matters that were considered by the Commissioner and which simply failed to persuade him that the orders sought should be made. This was within the spectrum of available outcomes, and no inferred error of the type referred to in the second limb of House v The King (1936) 55 CLR 499 arises." (Emphasis in original) 1. There was an obvious overlap between the Secretary's submissions on this ground and those she advanced in support of grounds 1, 2, 3 and 4. Our observations in respect of those grounds apply equally to ground 7. 2. As the chronology at [9]-[14] above demonstrates, the Commission will move with alacrity to attempt to resolve industrial disputes brought before it. In the present case, the Secretary did not notify the Commission of the Dispute until two days after she became aware of the threat of industrial action. This required Commissioner O'Sullivan to expedite the hearing and his Decision. This may be said to have manifested itself in the brevity, style and contents of the Decision. 3. In the circumstances, noting that this is an appeal from a decision of a Commissioner as to whether to make a dispute order against impending industrial action, the principle set out in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 ("Pozzolanic") and in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 292; [1996] HCA 6 that the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error, takes relative significance. 4. Having regard to the principles enunciated in House v The King and Pozzolanic, we did not consider the Decision as being "unreasonable or plainly unjust". 5. The outcome in the Decision was available on the evidence and submissions before Commissioner O'Sullivan which he considered and with which dealt on an urgent basis. We were mindful that the question on appeal was not whether the members of the Full Bench consider that they would have reached the same outcome. We were not persuaded that the Secretary had established inferred error of the kind referred to in House v The King. Utility and other matters arising from the time period in which the Full Bench was required to determine the Appeal 1. In its Outline of Submissions, at par 8, the Federation submitted that leave should be refused because: "…it is unlikely that any practical utility will be served by a grant of leave to appeal. The appellant contends that leave to appeal should be granted primarily on the basis of the impact and disruption this it is asserted will be caused by the industrial action to occur on 30 June 2022. In the event of planned industrial action, principals are directed to advise parents, caregivers and students of the arrangements that will be in place during the period of the industrial action: Affidavit of Clare Archibald at [98]-[99]. Given it is now after school hours the day prior to the industrial action, those arrangements will already be in place and it is unlikely any disruption would be averted even if the appellant was successful on appeal." 1. Our attention was drawn to two authorities in which the Full Bench of the Commission refused leave to appeal on the basis that the appeal would have no utility: Wei Fen Xian and Rail Corporation New South Wales [2010] NSWIRComm 46 and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Industry and Investment [2010] NSWIRComm 121. 2. The compressed time period in which the Full Bench was required to hear and determine this Appeal, is often a factor in industrial proceedings. In this instance, the circumstances set out above at [9]-[11] above also contributed to the Appeal being filed by the Secretary without the benefit of the transcript or written reasons. 3. In all, while they did not have particular bearing on our decision to refuse leave to appeal, we had sympathy with the submissions at par 9 of the Federation's Outline of Submissions that "this [was] not a suitable vehicle for examining the powers of the Commission to make dispute orders under s 137 of the Act in circumstances in which the parties have had an extremely abbreviated opportunity to prepare submissions and the members of the Full Bench will have very little time to consider the decision". 4. Had leave to appeal been granted and the appeal upheld, the Full Bench would have been required to determine whether to make dispute orders and, if so, the form of those orders. With the industrial action planned to take place the following day, and the hearing commencing at 4.30pm, the Full Bench would necessarily have had to make a decision and issue any orders immediately. Even then, the likelihood that such orders could have been communicated to the Federation's members in sufficient time to prevent the industrial action from taking place is doubtful. 5. As it transpired, it became unnecessary to determine whether leave to appeal should be refused on the basis of utility or other consequences of the compressed time period, as the Full Bench was not persuaded that the Appeal warranted the granting of leave in accordance with the principles set out in Knowles. ********** Endnotes 1. Tcpt, 29 June 2022, pp 14(19)-15(17) 2. Tcpt, 29 June 2022, p 28(36-41) 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: 04 July 2022