Notification under Section 130 by PSA&POA Union of NSW of a dispute with Dept of Environment & Climate Change re implementation of proposed new structure - CMA [2007] NSWIRComm 1096

Industrial Relations Commission of New South Wales

CITATION: Notification under Section 130 by PSA&POA Union of NSW of a dispute with Dept of Environment & Climate Change re implementation of proposed new structure - CMA [2007] NSWIRComm 1096

FILE NUMBER(S): 1399 of 2007

CORAM: Murphy C

Interim injunctive orders sought to prevent recruitment action for vacant newly created position of Catchment Co-ordinator, Education and Extension, following July restructure. Argued that vacant position had taken over major responsibilities of Association member's position held since September, 2004 and known in new structure since July, 2007, as Catchment Co-ordinator, Soils and Land Use. Orders eventually to be sought under S.175 of IR Act through S136(1)(d) provided for Association member, Mr W Brown, to be recognised as a displaced officer for the purposes of the Premiers Memo No. 96/5 Managing Displaced Employees and then be entitled to be considered before any other applicants for the newly created position of Catchment Co-ordinator, Education and Extension. Argued by Association that Mr Brown's position had been effectively "deleted" by shift of responsibilities and persons supervised in terms of Premiers Memo. Argued by both Counsel in respect of Castlemaine Tooheys tests, as interpreted by subsequent Commission decisions, application of interim orders in context of industrial disputation, emphasising need for serious question to be tried and balance of convenience. Argued by both Counsel re effect of S22 of Public service Employment Management Act, with Association arguing that "placement" of member Mr Brown in new position was not an "appointment or failure to appoint" disallowed by S22 as such would be in accordance with Premiers Memo for Displaced Employees. Respondent argued attempt to elevate policy document over statutory limitations. Since the Commission was not "authorised" in terms of S.136(1)(d) to make orders (2) and (3) sought in arbitration - predicated upon Mr Brown being a "displaced employee" whose position was "deleted" which was an impermissible attempt to attack when the appointment process for new position. Dispute in terms of S136(1)(d) was regarding "the appointment or failure to appoint" in terms of S22 of PSEM Act. CATCHWORDS: Argued by respondent that Mr Brown's substantive position was a generic one of Catchment Co-ordinator with key performance criteria in common with other Catchment Co-ordinator positions - including the newly structured position sought by Mr Brown. He was not "displaced" by virtue of changes in duties and supervisory responsibilities and neither has his substantive position been "deleted" as per the definitions under the Premiers Memo 96/5.