Ters v Health Secretary in respect of the South Western Sydney Local Health District [2023] NSWIRComm 1009

Industrial Relations Commission New South Wales Medium Neutral Citation: Ters v Health Secretary in respect of the South Western Sydney Local Health District [2023] NSWIRComm 1009 Hearing dates: 6 September 2022 Date of orders: 6 February 2023 Decision date: 06 February 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Commissioner Webster of 4 May 2022, that the application in matter 2021/179129 be dismissed, is quashed. 4. The Health Secretary's notice of motion filed 20 January 2022 is dismissed. 5. The file in matter 2021/179129 will be returned to Commissioner Webster for determination in accordance with this decision. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Victimisation application – whether s 213(2) of the Industrial Relations Act 1996 constitutes a comprehensive code of the Commission's powers to enforce Ch 5 Pt 1 of the Act – whether s 213(2)(b) would extend to permit an order requiring an employer to withdraw a warning issued to an employee – whether for the purposes of s 213(2)(e) a threat of victimisation must be certain, imminent and unconditional – whether Commissioner at first instance erred in finding that the application did not disclose a reasonable cause of action or one that could be successful Legislation Cited: Industrial Relations Act 1991 s 482 Industrial Relations Act 1996 ss 3, 89, 100C, 100D, 136, 137, 187, 188, 191, Ch 5 Pt 1 ss 210, 213, ss 266, 364, 368, 370, 380 Industrial Relations Amendment (Industrial Court) Act 2016 Sch 1 item [73] Cases Cited: A v B [2021] NSWIRComm 1058 Baker v Australian Workers' Union [2005] NSWIRComm 1225 Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 Basan v Commissioner of Police (No. 2) [2022] NSWIRComm 1033 Bull v Attorney General (NSW) (1913) 17 CLR 370 Certain Lloyds Underwriters Subscribing to Contract Number IH00AAQS v Cross [2012] HCA 56 Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481 Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No 2) [2019] NSWIRComm 1056 Julie Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 Katsantonis v Inner West Council [2017] NSWIRComm 1015 Macdonald v Commissioner of Police [2017] NSWIRComm 1070 Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 Simon Richard Lane v The Commonwealth Bank of Australia [1999] NSWIRComm 336 Ters v Secretary of the Ministry of Health in respect of South Western Sydney Local Health District [2022] NSWIRComm 1034 Transport Workers' Union of New South Wales (o/b John Power t/as John Power Pty Limited) v Forum Transport Pty Ltd [2011] NSWIRComm 1012 Transport Workers' Union of New South Wales v Patrick Murray [2008] NSWIRComm 6 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 X v Secretary, Department of Education (No 2) [2022] NSWIRComm 1092 Texts Cited: Nil Category: Principal judgment Parties: Mary Ters (Appellant) Health Secretary (Respondent) Representation: Counsel: I Latham (Appellant) A Britt (Respondent) Solicitors: Kennedys (Australasia) (Appellant) Kingston Reid (Respondent) File Number(s): 2022/00145925 Publication restriction: No Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2022] NSWIRComm 1034 Date of Decision: 4 May 2022 Before: Commissioner Webster File Number(s): 2021/00179129