Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2024] NSWIRComm 1020 Hearing dates: 19 March 2024 Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Recommendation made Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial dispute - Employee performing role on a temporary basis for over 12 years - Payment of temporary assignment allowance – Placement of employee in ongoing position Legislation Cited: Government Sector Employment Act 2013 (NSW), s 46 Government Sector Employment Regulation 2014 (NSW), reg 20 Industrial Relations Act 1996 (NSW), s 134(2) Category: Procedural rulings Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (notifier) Industrial Relations Secretary on behalf of the Department of Communities and Justice (Respondent) Representation: J Jobberns (solicitor), Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales I Taylor for the Industrial Relations Secretary File Number(s): 2024/00092887 Publication restriction: No Recommendation 1. This dispute concerns the temporary assignment of Ms Wendy Durheim to the role of Registrar at the Casino Local Court since 26 November 2012 and her entitlement to a temporary assignment allowance pursuant to reg 20 of the Government Sector Employment Regulation 2014 (NSW). That part of the dispute that concerned payment in respect of the temporary assignment allowance has been resolved between the parties however, there is an ongoing issue in respect of her ongoing employment with the Department. 2. Ms Durheim has been substantively employed as the Registrar of the Kyogle Local Court (Kyogle Registrar) since in or around April 2003. The Kyogle Registrar is graded as a clerk grade 5/6. Since 26 November 2012, Ms Durheim has been acting as the Registrar of the Casino Local Court (Casino Registrar) which was graded as a clerk grade 7/8. 3. In March 2022 the Casino Local Court closed due to flooding of the Northern Rivers. Ms Durheim continued to undertake her duties as the Casino Registrar from the Lismore Local Court. 4. At some time prior to October 2020 the Casino Registrar role was deleted without consultation with the notifier, the PSA, or with Ms Durheim. No information about the deletion of the Casino Registrar role was communicated to the PSA or Ms Durheim until 7 February 2024. Despite this, Ms Durheim has continued to act in the Casino Registrar role including conducting duties necessary with re-opening the Casino Local Court which is scheduled to occur in early May 2024. 5. In circumstances where there continues to be work to be completed by a Registrar at Casino and Ms Durheim has continued to complete all necessary work, as a matter of fairness, I make the following recommendation to resolve the current dispute between the parties in accordance with s 134(2) of the Industrial Relations Act 1996 (NSW): 1. The respondent should delete the substantive position of the Kyogle Registrar and re-establish the Casino Registrar position as an ongoing grade 5/6 position. 2. The respondent should appoint Ms Durheim to the role of Casino Registrar 5/6 in accordance with s 46 of the Government Sector Employment Act 2013 (NSW), and 3. The respondent should undertake these steps as soon as practicable. 1. Mr Taylor for the respondent has indicated that the respondent is amenable to complying with this recommendation and I am grateful to the respondent for that indication. Janet McDonald 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: 20 March 2024