Industrial Relations Commission New South Wales Medium Neutral Citation: Industrial Relations Secretary on behalf of the Department of Communities and Justice v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales [2024] NSWIRComm 1050 Hearing dates: 14 August 2024 Date of orders: 14 August 2024 Decision date: 14 August 2024 Jurisdiction: Industrial Relations Commission Before: Senior Commissioner Constant Decision: Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: (1) The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"), its officers and employees, and its members employed in the NSW Sheriff's Office ("Sheriff's Office") must immediately cease organising and refrain from taking industrial action by those PSA members employed by the Sheriff's Office, being the full-day stop work industrial action which is scheduled to commence on 15 August 2024. (2) The PSA, its officers, employees, agents, and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting, or inciting members of the PSA to organise or take industrial action contrary to Order A1. (3) These orders take effect immediately. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders Legislation Cited: Industrial Relations Act 1996, ss 135, 136, 137 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Industrial Relations Secretary on behalf of the Department of Communities (Notifier) Public Service Association and Professional Officers' Association of New South Wales (Respondent) Representation: B Rauf of Counsel and K Kless (Notifier) D Bartle and B James (Respondent) File Number(s): 2024/00298925 Publication restriction: Nil REVISED EX TEMPORE DECISION 1. The Commission has before it an application by the Industrial Relations Secretary ("IR Secretary") for orders to prevent industrial action, which is proposed to occur tomorrow, 15 August 2024. 2. I conciliated the dispute this afternoon. When it became apparent that further attempts at conciliation were unlikely to resolve the matter, I issued a certificate under s 135 of the Industrial Relations Act 1996 ("Act"). The matter proceeded almost immediately into arbitration. 3. The IR Secretary relied on the oral evidence of Deputy Sheriff Daniel Brennan Gordon. I will not attempt to summarise or paraphrase all of his evidence. I will refer to that evidence only as necessary, given the urgency of this matter. 4. It is not in any great controversy in these proceedings that industrial action is planned. Mr Gordon gave evidence about the proposed industrial action being a full day of industrial action, or a one-day strike. Mr Ben James, who instructed Mr David Bartles, who appeared for the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") today, confirmed that he had issued the direction in the form of the memo dated 14 August 2024 and headed "Undervalued, Understaffed, Underpaid: NSW Sheriff's Officers' full day of industrial action". 5. I have determined to make dispute orders, largely in the form sought by the IR Secretary as varied in the hearing today. I have done so having regard to all of the evidence and submissions put before me today. Two matters have featured particularly in my deliberation. 6. First, the evidence that the planned industrial action will cause disruption to the provision of the services by Courts and Tribunals in NSW. Mr Gordon described in broad strokes the impact that the strike taken by members of the PSA will have on courts and tribunals. 7. I accept that the nature of the action proposed for tomorrow will have a significant impact on the provision of court services to the people of NSW, in particular the closure of 65 Local Courts including many on regional areas. These are at the coalface of the provision of access to justice in NSW including in respect of their role in the provision of protection in the form of Domestic Violence Orders, a matter which I take on judicial notice as Mr Gordon did not give evidence on this point. 8. I note the PSA's submissions on the use of AVL do not include any evidence of the practical use of AVL by Local Courts. I do not consider that the availability of AVL outweighs the public interest in making orders to ensure that the Local Courts are able to provide services to the public tomorrow. 9. I also note that the Chief Judge has directed that in 16 locations jury trials have been deferred. However, I note that the Downing Centre and Parramatta District Courts have not had jury trials deferred and I take judicial notice that these are major centres for jury trials. 10. The second factor to which I have had regard in determining to make orders is the fact that the members of the Association are covered by awards of this Commission which require work to continue whilst disputes are being resolved. I note, for example, cl 10 of the Crown Employees (Sheriff Officers) Award is titled "Grievance and Dispute Settling Procedure". Clause 10 sets out the steps that will be taken by the parties to resolve a dispute. I note that cl 10(xi) provides that during these procedures "normal work undertaken prior to notification of the dispute or difficulty will continue unless otherwise agreed between the parties". 11. The proposed industrial action for tomorrow is at odds with that obligation. I consider that it would be inconsistent with the objects of the Act and the Commission's award-making powers to turn a blind eye to conduct which would be in breach of an employee's award obligations. 12. I accept the submissions of the Crown that clause 10 applies but I note that PSA contended that it did not. However, for abundant clarity I note that if I am wrong and clause (xi) of the Award does not apply, then I would have made the orders preventing the action tomorrow in any event on the basis of the public interest. 13. There was some debate before me as to the form that any orders or directions should take. The parties made submissions in relation to the directions, and when I read the orders and directions my position will become clear. Without going into the detail, in the course of that discussion the IR Secretary conceded aspects of the orders and directions ought not be pressed. I am grateful for these concessions. I note also that the Crown will have its own means to communicate my orders to its employees and it should do so if it is concerned as to the message reaching its employees. 14. I raised with the parties whether a recommendation in addition to the Orders sought by the IR Secretary was appropriate. In response to my query, the PSA submitted that I should recommend that the Crown provide the PSA with a detailed update of where the Sheriff's uplift is within 21 days. The IR Secretary sought that the matter be raised at a different time and in the "ordinary course". 15. Despite me raising the matter, I have, after consideration, determined not to make such a recommendation but I do encourage the parties to discuss the underlying issue either within the Commission or otherwise. Orders and directions 1. Pursuant to ss 136(1)(c) and 137(1)(a) of the Industrial Relations Act 1996 the Commission makes the following orders: 1. The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA), its officers and employees, and its members employed in the NSW Sheriff's Office (Sheriff's Office) must immediately cease organising and refrain from taking industrial action by those PSA members employed by the Sheriff's Office, being the full-day stop work industrial action which is scheduled to commence on 15 August 2024. 2. The PSA, its officers, employees, agents, and members must cease and refrain from authorising, supporting, encouraging, directing, aiding, abetting, or inciting members of the PSA to organise or take industrial action contrary to Order A1. 3. These orders take effect immediately. 1. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, the Commission makes the following directions: 1. The PSA must by no later than 12:00am on 15 August 2024: 1. Publish in a prominent position on its website, the PSA's Facebook and other social media pages, Order A1 and a direction to members that they comply with that order and not take the industrial action referred to in Order A1. 2. Send by email to all members in the Sheriff's Office a link to Order A1 and a direction to comply with that orders and not take the industrial action referred to in Order A1. 3. Provide or cause to be provided a copy of Orders A1, A2 and A3 above to the PSA's representatives employed by the notifier. ********** Amendments 16 August 2024 - "Case name and Parties' names corrected to reflect the correct party against whom the orders were made on 14 August 2024". 16 August 2024 - Case name and Parties' names corrected to reflect the correct party against whom the orders were made on 14 August 2024". 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: 16 August 2024