Industrial Relations Commission New South Wales Medium Neutral Citation: Local Government NSW v New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union [2024] NSWIRComm 1033 Hearing dates: 30 May 2024 Date of orders: 30 May 2024 Decision date: 30 May 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996, the Commission makes the following orders: (1) Subject to Order 2, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"), its officers and employees, and its members employed by the Liverpool City Council ("Council") must immediately cease taking industrial action, including that described in numbered paragraphs 2, 4, 5 and 6 of the letter from Stephen Donley of the USU to Jason Breton of the Council dated 28 May 2024 ("Letter"). (2) Order 1 does not include the action described in numbered paragraph 8 of the Letter. (3) The USU, its officers, employees, agents and members must cease and refrain from authorising, organising, supporting, encouraging or inciting industrial action contrary to Order 1. (4) These orders take effect immediately and will remain in force until 30 July 2024 or until further order of the Commission. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders Legislation Cited: Industrial Relations Act 1996 ss 130, 135, 136, 137, 146, Dictionary Work Health and Safety Act 2011 s 84 Cases Cited: Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1078 Texts Cited: Nil Category: Principal judgment Parties: Local Government NSW (Notifier) New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Respondent) Representation: T Duffy (Senior Industrial Officer, Local Government NSW) (Notifier) B O'Kell (Industrial Officer, USU) (Respondent) File Number(s): 2024/00161555 Publication restriction: No EX TEMPORE DECISION 1. On 1 May 2024, Local Government NSW ("LGNSW") filed a notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("IR Act"). The notification was filed on behalf of the Liverpool City Council ("Council"). 2. The notification alleged that outdoor employees of the Council had commenced taking industrial action at approximately 6.30am on 1 May 2024. The nature of the action was described in a letter from the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU") to the Council dated the same day, which was attached to the notification. It suffices to say that the action comprised a series of work bans. 3. I listed the matter for a compulsory conference on an urgent basis at 4.00pm on 1 May 2024. The USU at that time did not concede that the action being taken by the employees was "industrial action" within the meaning of the IR Act. Rather, it contended the action was being taken pursuant to s 84 of the Work Health and Safety Act 2011. 4. After several hours of conciliation, a position was reached between the parties which sufficed for the USU to indicate to the Commission that it would strongly recommend to its members to lift the work bans. I listed the matter for report back on 3 May 2024. 5. At that report back, I was informed that the work bans had been lifted. The matter was stood over for further report back on 10 May 2024, pending the outcome of a meeting of the USU's members on 7 May 2024. 6. On 7 May 2024 LGNSW sent an email to the Registry requesting that the matter be relisted on an urgent basis. I listed the matter for further conference at 2.00pm that day. At that conference I was informed that the Council's "yellow shirt" employees had decided to go on strike. Its "indoor workers" had elected to impose a ban on the working of overtime, although the USU described this as a ban on working during flexitime and doing unpaid overtime work. (I will resist exploring the question as to when employees might be expected to perform unpaid overtime work and whether that could properly constitute a work ban in any event.) 7. I attempted, through conciliation, to assist the parties to resolve the dispute. Those attempts were unsuccessful. I informed the parties that I would issue a certificate pursuant to s 135 of the IR Act. (I subsequently did so.) LGNSW did not, at that time, press for dispute orders. The existing listing of the matter for a report back on 10 May 2024 was confirmed. 8. At that report back, LGNSW referred to a letter from the USU to the Council dated 8 May 2024, the effect of which was to inform the Council that the union's members had resolved to return to work but to impose certain work bans. LGNSW requested that the matter be listed for arbitration so that it could seek dispute orders on behalf of the Council. I made directions in anticipation of arbitration, including that it take place on 14 May 2024. 9. When the matter came before me on 14 May 2024, I was informed that the parties had reached a consent position. In short, the parties had formulated consent orders to be made by the Commission which would have the effect of requiring the USU, its officers and employees and its members employed by the Council to cease taking industrial action. Subject to those orders being made, LGNSW gave two undertakings on behalf of the Mayor of Liverpool, Ned Mannoun. The first was that he would attend a case conference conveyed by the Commission. The second was that he would refrain from making any public comments on social media or otherwise about any matters relating to this dispute or any adverse comments about the Council's workforce until after that case conference. In return, the USU gave an undertaking that its signage truck would be removed from the local government area. 10. I made orders consistent with the consent orders. 11. I convened the case conference requested by the parties on 24 May 2024. It was conducted over the course of some hours. My understanding at the end of the conference was that the parties had reached an agreement in principle that would see this dispute resolved. 12. At 7.34am on 28 May 2024 the Registry received an email from the USU. In short, the email asserted that the Council had not carried out its part of the agreement reached the previous Friday. The email informed the Commission that at a meeting on the morning of 28 May 2024 the USU's members had voted to take certain actions, the precise nature of which were unclear at that time but which were understood "to be of a similar nature to previous actions in this matter". 13. At 1.30pm on Wednesday, 29 May 2024 the Registry received an email from LGNSW stating that a "cohort of employees engaged in strike action yesterday" and that while they had elected to return to work, they had continued to engage in work bans. Those work bans were described in a letter from the USU to the Council dated 28 May 2024, which was attached to LGNSW's email. LGNSW requested that the matter be relisted. 14. The matter came before me today. After a short discussion between the parties, including off record, I resolved to move into arbitration. 15. LGNSW confirmed that Mr Mannoun had determined not to take a certain action which had been agreed on 24 May 2024. No good explanation was given for his apparent change of heart. 16. LGNSW tendered a letter from the USU to the Council dated 29 May 2024, which listed ten "motions" passed by the USU's members on 28 May 2024 ("Letter"). For convenience, I will refer to each of these as "Items". LGNSW identified five of those Items as amounting to "industrial action" as defined in the Dictionary to the IR Act. These were as follows: "2. That we cease carrying out CRMS or VIP requests and only do work that is our normally scheduled work. … 4. No contacting customers by phone. 5. Return to a yard for meal breaks and our break will not include travel time. 6. Do not complete any paperwork unless its [sic] safety related. … 8. That no USU member attend any investigation meeting, or meeting where HR are present without a USU organiser." 1. The Letter stated at Item 1 that the bans are to remain in place until Thursday, 6 June 2024. 2. LGNSW asks the Commission to make dispute orders. It called evidence from Peter Scicluna, the Acting Director of Operations for the Council, and Jason Breton, the Acting Chief Executive Officer of the Council. Each gave evidence as to their understanding of the effect of the work bans and their potential to have a detrimental impact on the operations or finances of the Council, or on employee and public safety. 3. I observe that while each witness was asked about the "actual or potential impacts" of each of the bans across the Council's operations, there was little, if any, evidence that the bans had in fact had any actual impact. The evidence of Mr Scicluna and Mr Breton was more in the nature of positing scenarios in which a particular ban might potentially have a detrimental safety, operational or financial impact. 4. Distilled to its essence, the case presented by LGNSW centres on the potential for delays in work being carried out as a result of the work bans. This was said to be the likely result of a customer request management or VIP request not being carried out; refusing to engage with customers by telephone; taking more time to travel to and from a yard for meal breaks, which would decrease the amount of time being able to be dedicated to performing the employee's functions; and, an uncertainty around scheduling, programming and allocation of resources if paperwork is not completed. 5. Some of these were said to have a potential public safety element, including matters such as waste management, removal of asbestos, the repair of roads (including filling potholes and heavy patching), removing fallen trees, repairing broken playground equipment and disposing of dead animals. Other concerns might be said to go to the question of amenity and, to adopt the language of Mr Scicluna, maintaining community assets to the satisfaction of ratepayers. 6. Relevantly, Mr Breton gave evidence that the types of people likely to raise a CRM or VIP request, and the issues that had historically been raised by them, leads to a high likelihood that the concerns raised will be significant from a safety or amenity perspective. 7. It was suggested that these matters have a bearing on employee safety as well, as disgruntled or disaffected ratepayers may wish to take out their grievances on the staff. It must be acknowledged, as was conceded by Mr Breton, that the potential for any detrimental impact as a result of a particular work ban and its significance will very much depend on the circumstances of the case. 8. LGNSW's objection to Item 8 of the Letter comes down to the proposition that it would result in delays in investigations or in meetings between an employee and HR. This was said to be the result of having to wait for a USU organiser to be available to attend any such meeting. In short, each of Mr Scicluna and Mr Breton assumed that there would be a delay as a result of this work ban, with the potential for adverse psychosocial welfare outcomes. 9. Other than in respect of Item 8 of the Letter, the USU did not lead evidence to controvert that of LGNSW. The USU called Sandie Morthen, an organiser with the union. She gave evidence of her responsibilities as an organiser. She stated in chief that she customarily dedicates one day a week for each of the four councils for which she has responsibility, and that councils generally accommodate her schedule. Under cross-examination, however, Ms Morthen clarified that her involvement with a particular council is not necessarily limited to the one day per week. She stated that next week, for example, she is going to be present at the Council to attend a series of meetings. 10. There is now no controversy between the parties that the actions set out in Items 2, 4, 5, 6 and 8 of the Letter constitute industrial action. The jurisdiction of the Commission to make dispute orders of the kind sought by LGNSW was the subject of considerable analysis by Walton J in Secretary of the Ministry of Health v New South Wales Nurses and Midwives' Association [2022] NSWSC 1078 at [36]-[59]. I am guided by those passages but will not reproduce them. I note in particular the following matters identified by his Honour: 1. Parliament intended that the making of dispute orders was to be a last resort. Accordingly, there is no presumption that, in the face of threatened industrial action, a dispute order will be made; 2. dispute orders are not lightly made by the Commission; 3. the conduct of the parties in industrial disputes is a relevant factor; and 4. any provisions contained in awards about dispute resolution processes are also relevant because it would be inconsistent with the objects of the IR Act to "turn a blind eye" to or disregard the terms of obligations under an industrial instrument made under the IR Act. 1. There is no controversy that in discharging its jurisdiction in these proceedings, the Commission is bound by s 146(2) of the IR Act which provides that the Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard, amongst other things, to the objects of the Act. 2. There are a number of factors that weigh against the making of dispute orders in these proceedings. In no particular order, they are, first, that the Council failed to implement the agreement that was reached on 24 May 2024. The Commission expects parties that come before it to honour the commitments that they have made in conciliated outcomes. I acknowledge that Mr Mannoun is not the employer. He is an elected official and is not under the direction or control of the CEO and other officers from the Council who attended that meeting. Despite that, he attended with a view to resolving the industrial dispute which is currently before the Commission and it is disappointing, to say the least, that he has not seen fit to follow through on his commitment. 3. Second, there has been some dilatoriness on the part of LGNSW in responding to the action. It elected not to press for dispute orders on 7 May 2024, despite me indicating that I intended to issue a certificate. Despite having been informed first thing on 28 May 2024 that further action was going to be taken, it did not invite the Commission to relist this matter until one and a half working days later. 4. Third, I have regard to the sometimes speculative nature of LGNSW's evidence as to the safety, operational and financial implications of the work bans. 5. There are, however, arguments in favour of making the dispute orders. Again in no particular order: first, as I have said, Mr Mannoun is not the employer of the employees. He is not directly a party to these proceedings and is not directly under the Commission's jurisdiction. 6. Second, there is a complete absence of any evidence from the USU as to why the industrial action is being taken. The Commission has no countervailing argument which would operate against that which is being led by LGNSW in support of the orders. 7. Third, while the evidence is speculative in part, as I will go on to address, there is the potential for detrimental operational and safety impacts as a result of the work bans. 8. Fourth, although neither party took me to it, cl 37(v) of the Local Government (State) Award has some significance. I note that in the Letter, the USU purported to invoke the grievance process under that Award. Subclause 37(v) provides that: "During this procedure and while the matter is in the course of negotiations, conciliation and/or arbitration, the work practices existing prior to the dispute shall, as far as practicable, proceed as normal." 1. The taking of work bans would seem to be inconsistent with that obligation. I repeat what I have already said about Walton's J statement that it would be inconsistent with the objects of the Act to turn a blind eye to or to disregard the terms or obligations under an industrial instrument. I would add that it is in the public interest that parties comply with their obligations under industrial instruments. 2. Fifth, and similarly, although perhaps less emphatically, in terms of Item 5 of the Letter, the work ban would appear to be inconsistent with cl 13(ii) of the agreement which was described in these proceedings as the "36 Hour Agreement", which was made pursuant to what was then cl 41 of the Award. 3. Finally, I have regard to the fact that there has been a history of ongoing disputation and industrial action during the course of this matter since 1 May 2024 which I consider is unlikely to cease without the Commission's intervention. 4. Taking those matters into account, I reiterate that there was a high level of hypothesis or speculation in the evidence led by LGNSW as to the safety, operational and financial implications of the work bans. As I have already stated, the evidence did not rise much higher than postulating scenarios in which there might be adverse consequences. I accept that if those scenarios came to pass, there might well be adverse consequences for the Council, its employees and members of the public. However, it is reasonably safe to assume that that will not be the case in every situation. As I have said, Mr Breton acknowledged several times that the significance of the bans will depend on the context in which they come to bear. 5. That said, I am satisfied that Items 2, 4, 5 and 6 of the Letter have the potential for disrupting and delaying Council's operations. On the evidence led by the Council, which was not controverted by the USU, the possibility of adverse safety or operational implications from any such delay is not entirely speculative or fanciful. I am not persuaded that the evidence demonstrates that there will be any particular financial implications as a result of the application of the bans. 6. I also accept that the bans have the significant potential of creating dissatisfaction amongst ratepayers. The potential for Council employees to be accosted by irate members of the public, particularly given the broader conduct of these proceedings, is a legitimate concern. 7. I have already raised my concerns in respect of Item 5 of the Letter and how it would appear to be inconsistent with cl 13(ii) of the "36 Hour Agreement". The USU offered no alternative interpretation. 8. I also have particular concerns in respect of Item 6 of the Letter. In light of the likelihood of disputes arising as to whether a document is or is not "safety related", Ms Morthen gave evidence that the union's members have been told that it was for "leaders" to make this determination and that, if an employee has concerns, they can raise the matter with her. On the one hand, it is a positive thing that the USU has implemented an arrangement to minimise the prospect of conflict, but the fact of that conflict is implicit in the very solution. 9. I am not persuaded that LGNSW has made out a case for intervention in respect of Item 8 of the Letter. The assumption that this ban would necessarily result in a delay in investigations or the like, with resultant impacts on employee welfare, does not stand up to the evidence adduced from Ms Morthen under cross-examination. I also accept the USU's submission that the item, in part, reflects the terms of cl 38A(iv) of the Award. Orders 1. Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996, the Commission makes the following orders: 1. Subject to Order 2, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("USU"), its officers and employees, and its members employed by the Liverpool City Council ("Council") must immediately cease taking industrial action, including that described in numbered paragraphs 2, 4, 5 and 6 of the letter from Stephen Donley of the USU to Jason Breton of the Council dated 28 May 2024 ("Letter"). 2. Order 1 does not include the action described in numbered paragraph 8 of the Letter. 3. The USU, its officers, employees, agents and members must cease and refrain from authorising, organising, supporting, encouraging or inciting industrial action contrary to Order 1. 4. These orders take effect immediately and will remain in force until 30 July 2024 or until further order of the Commission. Directions 1. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: 1. The USU must by no later than 5.00pm on 30 May 2024: 1. send an email to all members of the USU employed by the Council providing them with the terms of Orders 1 and 2, and directing them to comply with those orders and not to take the industrial action referred to in Orders 1 and 2; 2. provide or cause to be provided a copy of Orders 1, 2, 3 and 4 above to the USU's representatives employed by the Council. 1. The USU must convene a meeting of its members employed as "outdoor staff" by the Council at 6.30am on 4 June 2024 at which time the USU is to direct its members to comply with Orders 1 and 2 and not to take the industrial action referred to in those orders. 2. The USU must convene a meeting of its members employed as "indoor staff" by the Council at 9.00am on 4 June 2024 at which time the USU is to direct its members to comply with Orders 1 and 2 and not to take the industrial action 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: 03 June 2024