Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Department of Education (COVID-19 Protocols) [2022] NSWIRComm 1063 Hearing dates: 29 July 2022 Date of orders: 29 July 2022 and 1 August 2022 Decision date: 01 August 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Motion is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders – application for interim relief – whether s 136(1)(a) of the Industrial Relations Act 1996 empowers the making of directions which have the effect of providing injunctive relief – whether s 136(1)(d) empowers the making of interim orders to maintain the status quo pending the determination of the dispute Legislation Cited: Industrial Relations Act 1996 ss 130, 134, 135, 136, Ch 3 Pt 2, s 172 Cases Cited: Barrier Industrial Council dispute with Broken Hill Chamber of Commerce and Others re Breach of Award and The Construction, Forestry, Mining and Energy Union (New South Wales Branch) dispute with Broken Hill Chamber of Commerce and Others re alleged breach of Award [2002] NSWIRComm 232 Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244 Fire Brigade Employees' Union of New South Wales (on behalf of Rampling) v Industrial Relations Secretary (Fire & Rescue NSW) (No 2) [2020] NSWIRComm 1060 Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW [2020] NSWIRComm 1002 Police Association v NSW Police (No 3) [2005] NSWIRComm 243 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 Public Service Association of NSW o/b Ferns v Fire and Rescue NSW [2018] NSWIRComm 1014 The Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081 Texts Cited: Nil Category: Procedural rulings Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier) Secretary of the Department of Education (Respondent) Representation: Counsel: F Anwar (Notifier) H Pararajasingham (Respondent) Solicitors: B Trainor, PSA (Notifier) K Smith, Crown Solicitor (Respondent) File Number(s): 2022/00212577 Publication restriction: No decision 1. On 20 July 2022 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") filed a notification of an industrial dispute ("Notification") pursuant to s 130 of the Industrial Relations Act 1996 ("Act"). The dispute is described in the Notification as follows: "1. This dispute concerns the Department of Education's (the Respondent) decision to relax its requirement that employees be vaccinated against COVID-19 (the New Policy). The implementation of the New Policy will be staggered. Employees who ceased employment due to their non-compliance with the vaccine requirements will be invited to apply for employment from 22 July 2022. The majority of employees who have been suspended on disciplinary grounds due to their non-compliance with the vaccination requirements will be advised on 25 July 2022 to return to work. In both cases, unvaccinated employees will be returning to work from 1 August 2022. 2. For the reasons set out below, the New Policy poses a risk to the health and safety of employees of the Respondent. …" (Emphasis in original) 1. The relief sought by the PSA is set out in the Notification in these terms: "The Notifier seeks the following directions under section 136(1)(a), or strictly in the alternative a recommendation that: 1. The Respondent take no steps to implement the New Policy. 2. The parties confer on the development and implementation of a new vaccination policy which is consistent with the respondent's duty of care. The Notifier also seeks that the status quo remains until the determination of this dispute." 1. The proceedings were listed for compulsory conference before Commissioner O'Sullivan on 21 July 2022. The dispute was unable to be resolved through conciliation. On 27 July 2022 the Commissioner issued a certificate pursuant to s 135 of the Act. 2. On 27 July 2022 the PSA filed a notice of motion seeking directions or, in the alternative, an interim order, to prevent the Secretary of the Department of Education ("Secretary") from implementing the changes she proposed. The PSA was granted leave, with the Secretary's consent, to amend its notice of motion on 29 July 2022. In this decision, a reference to the "Motion" is a reference to the notice of motion as amended. 3. The Motion sought the following relief: "1. The Respondent is directed not to implement Determination No 1 of 2022 made pursuant to s 22(1) of the [Education] (School Administrative and Support Staff) Act 1987 (NSW), insofar as it departs from the practices and procedures prescribed by Determination No 1 of 2021- COVID 19 Vaccination Evidence made on 18 October 2022 until the substance and merits of the dispute are heard and determined by the Commission or until further order of the Commission. 2. The Respondent is directed not to implement Direction No. 1 of 2022 made pursuant to s 52(1) of the Government Sector Employment Act 2013 (NSW), insofar as it departs from the practices and procedures prescribed by the direction made by Secretary Georgina Harrisson on 22 November 2022 titled 'Direction requiring COVID-19 vaccination of corporate, early child education and non-school based staff working in Department of Education offices' (GSE Direction) until the substance and merits of the dispute are heard and determined by the Commission or until further order of the Commission. 3. For the avoidance of doubt, the Respondent is directed not to do the following (which would constitute a departure from the practices and procedures prescribed by Determination No 1 of 2021 - COVID 19 Vaccination Evidence and the GSE Direction): a. permitting existing employees who are not double vaccinated against COVID-19 from returning to work unless those employees have a valid medical contraindication; and b. issue contracts of employment to any persons who are not double vaccinated against COVID-19, unless those employees have a valid medical contraindication. 4. In the alternative to paragraphs 1 to 3 above: a. An interim order be made requiring the status quo to be maintained while the substance and merits of the dispute are heard and determined by the Commission or until the Commission orders otherwise. b. For the avoidance of doubt, the interim order restrains the Respondent from: i. permitting existing employees who are not double vaccinated against COVID-19 from returning to work unless those employees have a valid medical contraindication, as required under Determination No 1 of 2021 - COVID 19 Vaccination Evidence; and ii. issuing contracts of employment to any persons who are not double vaccinated against COVID-19, unless those employees have a valid medical contraindication, as required under Determination No 1 of 2021 - COVID 19 Vaccination Evidence. 5. Such further or other orders that the Commission considers appropriate." 1. As the changes which the PSA sought to avert were planned to be implemented from 1 August 2022, the Motion was listed for hearing on an urgent basis. The hearing took place on 29 July 2022. 2. In support of the Motion, the PSA read two affidavits of Benjamin David Trainor, a solicitor in its employ, affirmed on 26 and 27 July 2022 respectively. Mr Trainor was not required for cross-examination. 3. The Secretary read an affidavit of Clare Jessica Archibald, the Acting Executive Director, Employee Relations for the Department of Education, affirmed on 28 July 2022. Ms Archibald was cross-examined by Mr Anwar of counsel, who appeared for the PSA. 4. Each party relied on written submissions, significantly developed in oral submissions during the hearing by Mr Anwar, and by Mr Pararajasingham of counsel, who appeared for the Secretary. 5. Having heard from the parties I informed them that I had determined not to make the directions or order sought in the Motion or any other orders pursuant to it. I stated that my reasons for that decision would follow. 6. These are those reasons. The PSA's reliance on s 136(1)(a) 1. In seeking the relief set out in prayers 1, 2 and 3 of the Motion, the PSA purported to invoke s 136(1)(a) of the Act. That provision empowers the Commission, in arbitration proceedings, to "make a recommendation or give a direction to the parties to the industrial dispute". The question which arose in the proceedings was whether that power extended to making "directions" in the terms sought. 2. Both parties placed some reliance on Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary for Industrial Relations [2018] NSWIRComm 1061 ("PSA Case"), in which the Full Bench observed: "86. This Full Bench acknowledges that the Commission may make directions pursuant to s 136(1)(a) of the Act which have coercive force, in the sense that a failure to comply may give rise to proceedings for contempt of the Commission, much in the same way as a failure to comply with a summons to appear and/or produce documents may have that consequence. As already indicated, such directions will, in most cases, be of an administrative or facilitative kind, such as a direction to an individual to attend a compulsory conference, a direction that the parties to a dispute confer or a direction that certain individuals take steps to ensure publication and compliance with dispute orders made by the Commission. 87. Directions of that kind are qualitatively different from a direction that an employer pay money to an employee. Further where such an outcome is not permitted by way of a dispute order (subs 137(3)), or the Commission's powers to order an employer to pay money to an employee as specifically provided for by way of the small claims procedure (ss 379 and 380), it appears to us that the legislature did not intend the directions power in s 136(1)(a) to extend that far." 1. The PSA drew particular attention to the recognition by the Full Bench that directions under s 136(1)(a) can have coercive effect. It also placed some emphasis on the words of qualification used by the Full Bench – "in most cases" – which allowed for the possibility of a direction being something other than of "an administrative or facilitative kind". The PSA contended, in any event, that it was "merely seeking facilitative or procedural orders pending the arbitration of the underlying dispute" (at par 4 of the PSA's Outline of Submissions). 2. The Secretary submitted that what was sought in the Motion was, in effect, a prohibitory injunction. As the directions proposed by the PSA would have a material and coercive effect, and substantially interfere with the Secretary's prerogative and rights, they could not be described as "facilitative". The Secretary contended that the directions would far exceed those contemplated at [86]-[87] in the PSA Case, even taking into account the qualification expressed by the Full Bench. 3. I accept the Secretary's submissions in this regard. The proposed directions are not properly to be regarded as "facilitative", at least in so far as that adjective was used in the PSA Case. 4. Further, care should be taken not to place too much significance on the Full Bench's caveat ("in most cases") at [86] in the PSA Case. Read properly, at [86]-[87] the Full Bench identified that directions under s 136(1)(a) would in the usual course be administrative or facilitative in nature. The Full Bench allowed for the possibility of what I would call "exceptions to the rule", although I observe parenthetically that it did not identify any. That the Full Bench allowed for such exceptions should not distract or detract from its articulation as to what it anticipated would be the situation "in most cases". There is no basis for construing the observations of the Full Bench as allowing for s 136(1)(a) to be interpreted as conferring an "at large" jurisdiction on the Commission to make such directions as it sees fit. 5. The question is whether s 136(1)(a) empowers the Commission to make directions which are, to all intents and purposes, injunctive orders. I am of the view that it does not. 6. The Act itself draws a distinction between "directions" and "orders". This is seen in s 136(1) itself, which provides: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following— (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 1. Construing the power to give directions as extending to contemplate injunctive relief effectively requires "directions" and "orders" to be regarded as synonymous. As a matter of statutory construction, I do not accept that Parliament would have used different terms in the same provision to mean the same thing. (I observe that a similar distinction between "orders" and "directions" is found in s 172 of the Act.) 2. Further in this regard, where the word "directions" appears elsewhere in the Act, it is in the context of such directions being of an administrative or facilitative nature: see ss 134(2) and 172(6). There seems no reason to conclude that the legislature intended that the word have a different meaning for the purposes of s 136(1)(a). 3. The construction for which the PSA contends would permit coercive directions to be made without apparent constraint. A dispute order under s 136(1)(c) is constrained by the provisions in Ch 3 Pt 2 of the Act. An order pursuant to s 136(1)(d) must be of a kind that the Commission is "authorised to make". Simply by ascribing a different label to the relief being granted, these limitations could be wholly circumvented. Indeed, on the PSA's submissions it is difficult to see that the Commission would have anything less than a plenary power to make such "directions" as it saw fit. 4. In a similar way, as Mr Pararajasingham submitted, the PSA's construction would permit a party to obtain interim orders without going through the gateways that would otherwise have to be passed in order to obtain interlocutory relief. That is, establishing that there is a serious issue to be tried and that the balance of convenience favours the granting of the relief: see, for example, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 at [32]-[34]. 5. I acknowledge that the PSA relied in large part on the contention that the introduction of the changes proposed by the Secretary would amount to a contravention of cl 9.11 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009. It is not necessary to traverse the basis on which that contention was made. It suffices to say that Mr Anwar submitted that it was an appropriate use of the Commission's jurisdiction under s 136(1)(a) to prevent a contravention of the Award, particularly in the context of maintaining the status quo pending the final determination of the proceedings. 6. The effect of that submission, however, is to confer on the Commission enforcement and compliance powers. That is beyond the Commission's jurisdiction. 7. It is necessary to acknowledge that in Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW [2020] NSWIRComm 1002 ("FBEU Case") I took a different approach. In that case I determined that the introduction of a particular workplace change would have been in contravention of the provisions of the relevant award. I directed, purportedly pursuant to s 136(1)(a), that the respondent in those proceedings not introduce the change, subject to further order of the Commission. 8. In the FBEU Case no question arose as to the Commission's powers to make a direction of the kind so made. Since then, the extent of the Commission's powers conferred by s 136(1)(a) has been the subject of some consideration by the Commission: Fire Brigade Employees' Union of New South Wales (on behalf of Rampling) v Industrial Relations Secretary (Fire & Rescue NSW) (No 2) [2020] NSWIRComm 1060 at [14] ("Rampling"); The Local Government Engineers Association of New South Wales v MidCoast Council [2021] NSWIRComm 1081 (which I observe is presently under appeal). 9. On reflection, and with the benefit of the submissions advanced by the parties in the present proceedings, I consider that the approach that I took in the FBEU Case ought not to be followed. 10. For these reasons, I determined that the Commission does not have the power to make directions of the kind sought in the Motion. Interim Order 1. The Secretary also challenged the Commission's jurisdiction to make the interim order which the PSA sought in the alternative. 2. The PSA relied on Barrier Industrial Council dispute with Broken Hill Chamber of Commerce and Others re Breach of Award and The Construction, Forestry, Mining and Energy Union (New South Wales Branch) dispute with Broken Hill Chamber of Commerce and Others re alleged breach of Award [2002] NSWIRComm 232 ("Barrier Industrial Council") in which Sams DP determined "that the Commission has the power to make an order requiring the status quo to be maintained while the substance and merits of a dispute are heard and determined by the Commission" (at [23]). His Honour proceeded to make an interim order pursuant to s 136(1)(d) of the Act. 3. The PSA submitted that this decision was "upheld on appeal" in Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244. Care needs to be taken with that submission. In those proceedings, the Full Bench considered an application for a stay of the interim order made by Sams DP, pending the hearing of the appeal against that order. While it refused to grant the stay, the Full Bench did not dismiss the appeal. 4. In any event, Mr Pararajasingham submitted that Barrier Industrial Council no longer represents the state of the law, in that the Commission's approach to the interpretation of s 136(1)(d) has "moved on" since 2002. He contended that on current jurisprudence, there must be an identified source of power for the order sought; s 136(1)(d) does not of itself confer a power "at large" to make orders. As no such source of power had been identified, he submitted that the interim order cannot be made. 5. In Police Association v NSW Police (No 3) [2005] NSWIRComm 243 Boland J observed: "59. As I earlier found, a 'decision' includes an order. But is an order reinstating or re-employing an employee, the making of which relies on the vehicle provided by s 136(1)(d), an order under Pt 6 of Ch 2 or an order under s 136(1)(d)? I take the view that an order referred to under s 136(1)(d) would be an order made pursuant to the relevant express power. So that if the Commission, pursuant to s 136(1)(d), was to make an order for the conduct of a secret ballot, the order would be an order under s 172 of the Act. Section 136(1)(d) is merely facilitative; it directs the Commission to the relevant express power in the statute under which the order may be made. Similarly, in arbitration proceedings, any order reinstating an employee (other than a dispute order under Pt 2 of Ch 3) would be an order under s 89 of the Act or, in other words, a 'decision of the Commission under Part 6 of Chapter 2'." 1. In Public Service Association of NSW o/b Ferns v Fire and Rescue NSW [2018] NSWIRComm 1014 Commissioner Newall referred to the "ample authority for the proposition that 'any other order the Commission is authorised to make' under the Act means one of the orders specifically set out in the statute" (at [20]). 2. In Rampling I observed: "11. I accept that Ms Saunders conceded that the case was not directly on point, and I agree. I do not think that Grassby assists the FBEU. Just as the magistrate's power in that case was fettered by the legislation, so is the Commission's power in this case. The Commission's jurisdiction is derived from statute. The relevant legislation in the present matter is the Industrial Relations Act. The Act empowers the Commission to make interim orders of a kind it is 'authorised to make'. 12. In my opinion, the word 'authorised' is key. The legislature did not use words such as 'necessary' or 'appropriate', but 'authorised'. In the context of a tribunal such as the Commission, which is a creature of statute, the word 'authorised' must be referrable to a power conferred by legislation, whether the Industrial Relations Act or one of the other acts conferring jurisdiction on it." 1. Having regard to these authorities, I accept the submissions advanced by the Secretary. Section 136(1)(d) enables the Commission, in arbitrating industrial disputes, to call in aid the powers otherwise conferred on it. But it is limited to those powers. It does not of itself confer on the Commission the power to make an interim order in the terms expressed in the Motion. The PSA did not identify any legislative provision that "authorises" the Commission to make such an interim order. 2. For these reasons, I determined that the Commission does not have the power to make an interim order of the kind sought in the Motion. Merits 1. Given the determinations I made as set out at [29] and [38] above, it was not necessary to consider the evidence and submissions advanced by the parties as to whether "on the merits" the Commission ought, or ought not, to make any directions or interim orders in respect of the Motion. Order 1. Following the hearing on 29 July 2022, I informed the parties that I had determined not to make the directions or any orders pursuant to the Motion. I omitted, unfortunately, to make an order formally dismissing the Motion. I now do so. Damian Sloan Commissioner ********** 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: 01 August 2022