Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 Hearing dates: 19, 20 June 2023, 5 July 2023 Date of orders: 23 January 2024 Decision date: 23 January 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Both proceedings are dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes – Power of Commission to make a determination pursuant to s 175 of the Industrial Relations Act 1996 – Whether factual bases for relief sought established – Whether communications between union delegate and union subject to legal professional privilege – Relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – No basis to grant relief EMPLOYMENT AND INDUSTRIAL LAW —Victimisation - Threatened termination of employee for disclosing confidential information to union as part of employee's duties as union delegate, including as a witness in proceedings for a new award – Employer audited employees' emails and discovered disclosures – Whether substantial and operative reason for investigating and finding employee had engaged in misconduct was his role as delegate and/or his participation in award proceeding - Consideration of 'reverse onus' provided for in s 210(2) of the Industrial Relations Act 1996 – Relevance of the correctness of the belief held by person responsible for taking detrimental action against employee to determining whether onus discharged – Consideration as to whether other persons had an material effect on decisions of those responsible for taking detrimental action – Presumption that detrimental action taken for proscribed reason displaced by direct evidence from those who took the detrimental action as to their motivations which was accepted - application dismissed Legislation Cited: Evidence Act 1995 (NSW), s 117 Fair Work Act 2009 (Cth), ss 340, 341, 361 Government Sector Employment Act 2013 (NSW), s 69(4) Government Sector Employment (NSW Police Force) Rules 2017 (NSW), rr 44-46 Industrial Relations Act 1996 (NSW), ss 6, 130, 131, 136, 137, 138, 163, 210, 213, 214 Police Act 1990 (NSW), ss 5, 81G, 218 Police Regulation 2015 (NSW), reg 76 Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato (aka Frank) Gatt [2022] NSWCA 151 Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Primo Foods Pty Ltd; Primo Foods Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, NSW South Wales Branch [2023] NSWIRComm 1076 AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 Basan v Commissioner of Police (No 3) [2023] NSWIRComm 1028 Bluescope Steel Limited (formerly BHP Steel Limited) v The Australian Workers' Union, New South Wales (No 2) (2005) 141 IR 329; [2005] NSWIRComm 36 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Capotosto v Uinta Beds t/as Sleep City [2001] NSWIRComm 219 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046; 69 AILR ¶102–860 Fire Brigade Employees' Union of New South Wales v Commissioner of Fire and Rescue New South Wales (PAD Program) [2021] NSWIRComm 1041 Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 J-Corp P/L v Australian Builders Labourers Federated Union of Workers Western Australian Branch [1992] FCA 793; 38 FCR 452 Jones v Dunkel [1959] HCA 9; 101 CLR 298 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62; 237 IR 63 Police Association of New South Wales (obo Tomlinson) v Commissioner of Police [2023] NSWIRComm 1053 Police Association of New South Wales v Commissioner of Police, NSW Police Force [2023] NSWIRComm 1095 Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415 Qantas Airways Ltd v Transport Workers' Union of Australia [2022] FCAFC 71; 292 FCR 34 Robertson v Singtel Optus Pty Ltd [2023] FCA 1392 Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431; 320 IR 198 Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1178; 320 IR 249 Transport Workers' Union of Australia v Qantas Airways Limited [2021] FCA 873; 308 IR 244 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Unions NSW v Carter Holt Harvey Wood Products Australian Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2 Williams v Australian Telecommunications Commission (1988) 52 SASR 215 Wong v National Australia Bank Limited [2022] FCAFC 155; 318 IR 148 Texts Cited: P Young and H Selby, Rose's Pleadings Without Tears in Australia, (3rd ed, 1997, The Federation Press) S Dunstone, A Practical Guide to Drafting Pleadings (2nd ed, 1996, LBC Information Services) Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier/Applicant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson with I Chatterjee (Notifier/Applicant) M Watts with E Baxter (Respondent) Solicitors: Kingston Reid (Respondent) Other: A McRoberts (Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales) File Number(s): 2023/159375 2023/159381 Publication restriction: Nil