Industrial Relations Commission of New South Wales CITATION : Notification under section 130 by the NSW Department of Community Services of a dispute with the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales re workbans [2000] NSWIRComm 66 APPLICANT: New South Wales Department of Community Services PARTIES : RESPONDENT: Public Service Asssociation and Professional Officers' Association Amalgamated Union of New South Wales FILE NUMBER: 5755 of 1999 CORAM: Schmidt J CATCHWORDS : Industrial dispute - workbans implemented by members of the union - prior proceedings before the Commission failed to resolve one issue - Department sought dispute orders to be made on an interim basis pending the hearing - orders opposed by PSA - relief sought was declined - doubt expressed that jurisdiction exists to make dispute orders on interim or interlocutory basis - no case was made out by the Department that it would suffer irreparable injury if orders were not made - Department did not make out a case for interlocutory relief on the merits - orders sought not granted Hill v Director General of the Department of Education at Training (NSW) (1998) 85 IR 201 CASES CITED : Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Maritime Union of Australia and Others v Patrick Stevedores No 1 Pty Ltd and Others (1998) 79 IR 281 HEARING DATES: 04/19/2000 EXTEMPORE JUDGMENT DATE : 04/19/2000 APPLICANT: Mr A Hatcher of counsel LEGAL REPRESENTATIVES: RESPONDENT: Mr R Moore of counsel JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Schmidt J DATE: 19 April 2000 MATTER NUMBER IRC 5755 OF 1999 Notification under section 130 by the NSW Department of Community Services of a dispute with the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales re workbans INTERLOCUTORY JUDGMENT (extempore) 1 This dispute was notified to the Commission in October 1999. It concerned work bans implemented by members of the union employed by the Department of Community Services upon a number of aspects of the work of those employees. 2 Various proceedings before the Commission followed as well as discussions between the parties. On 11 November 1999, I made a recommendation as to the lifting of various bans. Some of that recommendation was accepted but further discussions and proceedings before the Commission failed to resolve one issue with which I am now concerned, namely, the implementation of the Department's Towards Better Service Program. 3 As a result, on 28 March a certificate of attempted conciliation was issued and the matter listed for arbitration on 16-18 May, with a program of preparation for the hearing fixed. The Department also sought that certain orders be made on an interim basis as to some aspects of the Towards Better Service Program, pending the hearing. That application was listed for hearing today. 4 There is no issue between the parties that the Towards Better Service Program, which was developed as a result of various observations made in the Report of the Wood Royal Commission, as to matters concerning paedophilia, has an important aim, namely, the improvement of the delivery of the Department's basic functions by those that it employs. 5 The difficulty between the parties is essentially two-fold: Firstly, whether the program is in large measure directed to the same aims as other programs already being implemented by the employees, thereby unnecessarily duplicating work; and secondly, whether the requirement to perform the Towards Better Service work is unfair, given the already excessive work load imposed by the Department on the employees in question, as the union asserts. 6 On 28 March, I gave directions to the parties as to the preparation for the hearing of the interim orders. When on 4 April the Department filed the orders it was seeking, it then became apparent for the first time that it was dispute orders which were being sought under section 137 of the Industrial Relations Act 1996 ('the Act'). In those circumstances, I relisted the matter for mention on 7 April to enquire whether the parties were still content to have the hearing proceed on 18 April. No expedition was sought. 7 The matter came on for hearing on 18 April. Apart from the tender of several documents, the Department called no evidence in support of its application. Mr Hatcher, appearing for the PSA called Ms Wilson, employed by the Department and a PSA delegate, to give evidence. The Department sought an adjournment of the hearing; it being caught by surprise, it said, by this evidence. While the PSA did not accept that it had been obliged to inform the Department of the evidence it intended to call given the directions of the Commission in March, the adjournment was not opposed. 8 Mr Moore of counsel today appeared for the Department and varied the orders sought to be made without objection. 9 The PSA opposed the orders sought on several bases, including that the Commission had no jurisdiction to make dispute orders under section 137 on an interim or interlocutory basis. If it had such jurisdiction, the PSA's attitude was that the orders should not be granted, the Department not having made out the burden which fell on it to make out a proper basis for the interlocutory orders to be granted, having in mind the decision of the Commission in Hill v Director General of the Department of Education at Training (NSW) (1998) 85 IR 201 at 209, where the approach of the High Court in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 was applied. 10 The Department's submission was that the Commission had jurisdiction to make the orders sought and that it would be satisfied that the evidence had demonstrated the necessity for granting the relief sought. This was particularly said to flow from the evidence of Ms Wilson, who had accepted that the Department was entitled to direct the performance of the work in question. While a somewhat different approach was suggested by Mr Moore to the principles that applied to interlocutory relief, following the approach of North J in Maritime Union of Australia and Others v Patrick Stevedores No 1 Pty Ltd and Others (1998) 79 IR 281 at 286, this difference in approach was said to amount to no difference at the end of the day as a practical matter, given the way the concept of balance of convenience would be approached, with irreparable injury, forming a subset of that concept. 11 Having heard the parties, I have concluded that the relief sought must be declined. Given the nature of dispute orders under section 137 of the Act, I am doubtful that they could be made on the interlocutory or interim basis upon which they were approached by the Department in this case. This particularly follows, in my view, from the provisions of section 138 of the Act. It is, however, unnecessary for me to form a concluded view on this difficult question of construction because of the firm view which I take on the exercise of the discretion, if it exists. 12 The grant of an order under the Act on an interlocutory or interim basis is in my view to be approached in the way discussed in Hill at pages 209-210. There are three matters to be considered: '(1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.' 13 Here it is not in issue that there is a serious question to be tried, the industrial action in question having been conceded by the PSA. 14 There has, however, been no case made out that the Department will suffer irreparable injury if the orders are not made or that the balance of convenience favours the Department. It seems undoubted that the Towards Better Service Program is an important one. Nevertheless, the evidence is that between now and the hearing in May there is at most two Thursday mornings on which work could be performed by any particular employee on that program. This position is one which must be considered in circumstances where I gave the Department the opportunity to seek expedition of the hearing of the dispute orders which it sought. That opportunity was declined and the orders now sought are not directed at the employees who are engaging in the industrial action, but rather at the 'PSA and any officer or employee of the PSA'. 15 This situation must be also considered in light of Ms Wilson's evidence as to the difficulties employees face in performing the work in dispute, given their existing workload. Ms Wilson's evidence as to this matter was not rebutted or called into question by any evidence called by the Department or in cross-examination. It follows that it must be accepted. In those circumstances, it must also follow that the Department has not made out a case for interlocutory relief on the merits. 16 For all of these reasons, I have concluded that the orders sought should not be granted. ------------------------ 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.