Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038

Industrial Relations Commission New South Wales Medium Neutral Citation: Banozic v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1038 Hearing dates: 21 April 2023 Date of orders: 24 April 2023 Decision date: 24 April 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that the proceedings be dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – dispute arising from investigation into alleged misconduct – whether conduct of employer in breach of applicable award – whether dispute enlivened dispute resolution provisions of award – whether dispute resolution provisions of themselves confer jurisdiction on the Commission Legislation Cited: Government Sector Employment Act 2013 s 70 Industrial Relations Act 1996 ss 6, 10, 14, 130, 131, 146, 175 Cases Cited: Beck v Commissioner of Police [2016] NSWIRComm 9 at [58] Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069 Texts Cited: Nil Category: Procedural rulings Parties: Eva Banozic (Applicant) Industrial Relations Secretary (Respondent) Representation: Counsel: M Whitbread (Respondent) Solicitors: C McArdle, McArdle Legal (Applicant) DCJ Legal (Respondent) File Number(s): 2023/00080202 Publication restriction: No

DECISION 1. Eva Banozic is employed as a Manager in the Security & Intelligence unit of Corrective Services NSW ("CSNSW"). On 20 January 2023 she was served with a letter from Paula Quarrie, the Acting Assistant Commissioner of Security & Intelligence for CSNSW, dated 20 December 2022. In that letter, Ms Quarrie stated that she had received information that Ms Banozic had "allegedly engaged in corrupt conduct" and that, consequently, Ms Quarrie had decided to suspend Ms Banozic from duty with pay in accordance with s 70 of the Government Sector Employment Act 2013. 2. Ms Banozic, directly and through her union, challenged CSNSW's decision to suspend her. She claimed that she had been denied procedural fairness in the process culminating in that decision, and that the decision may have been affected by bias. She also sought details of the corrupt conduct in which she had allegedly engaged, while denying strenuously that there could be any substance to such allegations. 3. On 7 February 2023 McArdle Legal, acting on behalf of Ms Banozic, wrote to Assistant Commissioner Bernhard Ripperger of CSNSW, invoking cl 9 of the "Crown Employees (Conditions of Employment) Award" and asserting a breach by CSNSW of cl 8 of that award. The letter should be read as having intended to refer to the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 ("Award"); it was common ground that this was the award which applied to Ms Banozic's employment. 4. For context, cll 8 and 9 of the Award are relevantly in these terms: 8. Work Environment 8.1 Work Health and Safety - The parties to this award are committed to achieving and maintaining accident-free and healthy workplaces in Government organisations covered by this award by: 8.1.1 the development of policies and guidelines for the New South Wales Public Service and, as and when appropriate for individual organisations, on Work Health, Safety and Rehabilitation; 8.1.2 assisting to achieve the objectives of the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011 by establishing agreed Work Health and Safety consultative arrangements in Government organisations and or/work premises; to identify and implement safe systems of work, safe work practices, working environments and appropriate risk management strategies; and to determine the level of responsibility within a Government organisation to achieve these objectives; … 9. Grievance and Dispute Settling Procedures 9.1 All grievances and disputes relating to the provisions of this award will initially be dealt with as close to the source as possible, with graduated steps for further attempts at resolution at higher levels of authority within the appropriate Department or Agency, if required. 9.2 An employee is required to notify in writing their immediate manager, as to the substance of the grievance, dispute or difficulty, request a meeting to discuss the matter, and if possible, state the remedy sought. 9.3 Where the grievance or dispute involves confidential or other sensitive material (including issues of harassment or discrimination under the Anti-Discrimination Act 1977) that makes it impractical for the employee to advise their immediate manager the notification may occur to the next appropriate level of management, including where required, to the Department Head or delegate. 9.4 The immediate manager, or other appropriate employee, will convene a meeting in order to resolve the grievance, dispute or difficulty within two (2) working days, or as soon as practicable, of the matter being brought to attention. 9.5 If the matter remains unresolved with the immediate manager, the employee may request to meet the appropriate person at the next level of management in order to resolve the matter. This manager will respond within two (2) working days, or as soon as practicable. The employee may pursue the sequence of reference to successive levels of management until the matter is referred to the Department Head. 9.6 The Department Head may refer the matter to the Secretary for consideration. 9.7 If the matter remains unresolved, the Department Head will provide a written response to the employee and any other party involved in the grievance, dispute or difficulty, concerning action to be taken, or the reason for not taking action, in relation to the matter. 9.8 An employee, at any stage, may request to be represented by the Association. 9.9 The employee or the Association on their behalf or the Department Head may refer the matter to the New South Wales Industrial Relations Commission if the matter is unresolved following the use of these procedures. 9.10 The employee, Association, Department and Secretary will agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute. 9.11 Whilst the procedures outlined in subclauses 9.1 to 9.10 of this clause are being followed, normal work undertaken prior to notification of the dispute or difficulty will continue unless otherwise agreed between the parties, or, in the case involving work health and safety, if practicable, normal work will proceed in a manner which avoids any risk to the health and safety of any employee or member of the public. 1. Despite further correspondence between the parties, and a meeting between them on 7 March 2023 (conducted by videoconference), the controversy between the parties could not be resolved. 2. On 10 March 2023 McArdle Legal sent a letter to the Industrial Registrar, purporting to refer the matter to the Commission pursuant to cl 9.9 of the Award. The letter summarised the dispute between the parties in these terms: "In summary, the circumstance is: 1. Our client has been stood down because of 'allegations that may constitute corrupt conduct'. 2. Despite multiple endeavours to have it do so, the Employer refuses to disclose what those 'allegations' are – but has acknowledged our total denial of any corrupt conduct, or conduct that could be corrupt. 3. Our client has been directly damaged in her health by this treatment, has attended her doctor, and is being referred to a course of treatment. 4. She has been stood down for almost two months, and the Employer refuses to tell her why. 5. The Employer has thus been put on notice by us that they are in breach of Clause 8 (also attached), 'Work Environment'. 6. We have followed, to the extent reasonably practicable, the steps of Clause 9." 1. The matter was allocated to Commissioner O'Sullivan, who attempted to resolve the dispute through conciliation. On 16 March 2023 the Secretary handed up submissions contending that the Commission lacked jurisdiction to determine the matter. The Commissioner proceeded to make directions requiring that Ms Banozic file and serve a document setting out the specific form of relief that she sought in the proceedings, including references to the provisions of the Industrial Relations Act 1996 ("IR Act") relied on, and that the parties file and serve the evidence and submissions on which they intended to rely. 2. Pursuant to those directions: 1. on 24 March 2023 Ms Banozic filed written submissions and a statement she had made dated 24 March 2023; 2. on 3 April 2023 the Secretary filed written submissions, and an affidavit of Gemma McGreal, Legal Officer, Professional Standards and Investigations with CSNSW, affirmed on 31 March 2023. As it transpired, the Secretary did not read that affidavit; and 3. on 11 April 2023 Ms Banozic filed written submissions in reply. 1. In her submissions of 24 March 2023, Ms Banozic described the relief she sought in the proceedings in these terms: "5. The relief claimed, given the repeated absence of the Respondent to remedy the matter raised, is for the following orders to be made: i. That the Applicant be informed forthwith of what, if any, allegation of 'corrupt conduct' has been made against her. ii. That the Applicant be permitted forthwith to respond to any such allegation. iii. That, unless there is evidence that would satisfy this Commission of any guilt on the part of the Applicant, she be reinstated to her pre stand-down duties, forthwith. iv. That the Applicant be reimbursed for loss of the normal expectations of income she has lost as a result of being stood down, including but not limited to shift allowances." (Emphasis in original) 1. On 13 April 2023 I directed that the Secretary's jurisdictional objection be heard separately to a hearing of the matter on the merits. That hearing took place on 21 April 2023. 2. During the hearing, Ms Banozic gave some short evidence. This included her identifying a letter dated 20 April 2023 which had been sent to her solicitor by the lawyer for the Department on the same day. That letter may be summarised as providing Ms Banozic with an update as to the assessment of the allegations against her, without providing particulars of the allegations or any certainty as to whether the allegations would be investigated and, if so, when such an investigation (or investigations) might commence and by whom any investigation would be conducted. This letter was said by Ms Banozic to be consistent with the conduct of CSNSW in respect of the matter to date, and to further evidence CSNSW's breach of cl 8 of the Award. 3. The parties' oral submissions were brief. They relied principally on their written submissions. 4. In summary, Ms Banozic argued that her grievance with CSNSW is an industrial matter within the meaning of s 6 of the IR Act. That industrial matter concerns an alleged breach of cl 8 of the Award, which is a grievance or dispute relating to the provisions of the Award within the meaning of cl 9.1. That enlivens the dispute resolution provisions in cl 9 of the Award, which on its terms Ms Banozic is bound to follow (a conclusion which is buttressed by s 131 of the IR Act). The terms of cl 9 must be regarded as being compliant with s 14 of the IR Act, and the Award as a whole presumed to set fair and reasonable conditions of employment, given the terms of s 10 of the IR Act. The Commission's jurisdiction is to be derived from the ability of the parties to refer unresolved disputes to the Commission pursuant to cl 9.9 of the Award. 5. The Secretary contended that cl 9 of the Award was not enlivened by Ms Banozic's grievance. He denied any breach of cl 8 of the Award, as alleged by Ms Banozic, with the result that there was no grievance or dispute within the meaning of clause 9.1 which would require the processes in cl 9 to be followed. 6. With respect, the parties in their written submissions failed to grapple with a more fundamental question: even assuming that Ms Banozic had properly invoked cl 9 of the Award, what was the statutory basis on which she sought to invoke the Commission's jurisdiction to grant the relief she seeks? 7. The Commission is a creature of statute. Its powers and functions must be exclusively found in the legislation conferring jurisdiction on it: Beck v Commissioner of Police [2016] NSWIRComm 9 at [58]; Local Government Engineers' Association of New South Wales v MidCoast Council (No 2) [2022] NSWIRComm 1069 ("MidCoast Council") at [40]. 8. The effect of Ms Banozic's written submissions is that as cl 9 of the Award allows for her grievance to be referred to the Commission, and with the Award presumed to set fair and reasonable conditions of employment, the Commission is invested with the power to resolve the dispute. The flaw in this argument is that it allows for the possibility that the Commission could use its award-making powers to extend its jurisdiction beyond that which the legislature has conferred on it. 9. In MidCoast Council the Full Bench determined (at [54] to [60]) that parties cannot through an enterprise agreement confer a jurisdiction on the Commission which it does not possess. The same conclusion must be reached, but more emphatically, if the jurisdiction is said to be conferred by an instrument which is one of the Commission's own making. 10. I raised these concerns with the parties during the hearing. Ms Banozic's position in response to these matters may be summarised as follows: 1. The matter which she seeks to bring before the Commission is clearly contemplated by the language of cl 9 of the Award. 2. She is seeking a determination from the Commission that CSNSW failed to comply with cl 8 of the Award. Such a determination is contemplated by s 175 of the IR Act, which confers on the Commission the power to determine any question concerning the interpretation, application or operation of any law or instrument. 3. Section 146(1)(a) of the IR Act provides that the functions of the Commission include "setting remuneration and other conditions of employment". Ms Banozic is seeking orders or directions which would have the effect of requiring compliance by CSNSW with cl 8, which falls within the "jurisdiction" of the Commission to set "other conditions of employment". 4. It is the function of the Commission to intervene to resolve matters of the kind now before it. CSNSW's allegedly unfair treatment of Ms Banozic, which shows no immediate signs of coming to an end, had caused her psychological and financial damage. The Commission would not adopt an unduly technical approach to its jurisdiction so as to deprive her of relief. 1. The Secretary submitted that the issues that I had raised further confirmed its position that the Commission lacked jurisdiction to deal with the present matter. 2. Section 175 of the IR Act does not greatly assist Ms Banozic on the question of jurisdiction. That section is an enabling provision. It confers a power to assist the Commission in the exercise of its jurisdiction; it does not of itself confer jurisdiction. 3. Similarly, I do not read s 146(1)(a) of the IR Act as conferring jurisdiction on the Commission. It is a description of certain functions of the Commission. The jurisdiction conferred on the Commission so as to discharge those functions are to be found elsewhere in the IR Act or as conferred by other legislation. For that reason, I do not accept the submission advanced by Ms Banozic that s 146(1)(a) is an "umbrella provision" encompassing, but not limited by, the Commission's powers to make awards under Ch 2 Pt 1 of the IR Act or to approve enterprise agreements made pursuant to Ch 2 Pt 2 of the IR Act. 4. I also do not accept that a decision by the Commission that it has no jurisdiction in the matter will leave Ms Banozic without remedy or recourse. Her case is premised on a breach by CSNSW of the Award, which has caused her loss and damage. There are avenues available to her to advance those claims outside of the Commission. 5. The Secretary also raised during the hearing questions as to whether the Commission is empowered to award the relief sought by Ms Banozic. He did not do so directly on the question of jurisdiction, and I am mindful that a distinction may be drawn between jurisdiction and powers. With that caveat, I have already referred to the constraints on the Commission's powers recognised by the Full Bench in MidCoast Council. I accept that questions would arise as to whether Ms Banozic could be awarded relief in the form set out at [9] above, although I observe that the Commission is not a tribunal of strict pleading. More significantly for present purposes, Ms Banozic has not identified the statutory source for the relief she is seeking. 6. It is apparent that Ms Banozic has been guided to bring these proceedings by the terms of cl 9.9 of the Award. The language of that provision is regrettably unhelpful and apt to mislead. In the present matter, I can do no more than to acknowledge the issue in the hope that my comments will be considered when next the Award is before the Commission for variation or review. 7. No legislative head of power has been identified by Ms Banozic as conferring jurisdiction on the Commission to deal with her application, or to provide the relief she seeks. I am not persuaded that the Commission has jurisdiction to deal with the proceedings. 8. In light of that conclusion, it is not necessary to address the submissions advanced by the parties as to the meaning and effect of cl 8 of the Award, and whether CSNSW's treatment of Ms Banozic might have contravened or be contravening that provision. 9. In the absence of jurisdiction, the only appropriate order is that the proceedings be dismissed. I so order. Damian Sloan Commissioner