Industrial Relations Commission of New South Wales CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Industry and Investment [2010] NSWIRComm 121 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Appellant) PARTIES: Department of Industry and Investment (Respondent) FILE NUMBER(S): IRC 410 of 2010 CORAM: Walton J Vice-President; Kavanagh J; Tabbaa C CATCHWORDS: APPEAL - industrial dispute - application for interim relief - consultation over voluntary redundancies - Government's 'Managing Excess Employees Policy' - application for new award - subject employees already taken redundancy - absence of utility - leave to appeal refused - dispute proceedings extant LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 10 August 2010 EXTEMPORE JUDGMENT DATE: 10 August 2010 Mr M Gibian of counsel W G McNally Jones Staff Lawyers LEGAL REPRESENTATIVES: Mr S Benson of counsel Crown Solicitor's Office JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President KAVANAGH J TABBAA C Tuesday 10 August 2010 Matter No IRC 410 of 2010 PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES AND DEPARTMENT OF INDUSTRY AND INVESTMENT Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for leave to appeal and appeal against a decision of Commissioner Ritchie given in PSA v Dept of Industry & Investment [2010] NSWIRComm 1026 DECISION OF THE COMMISSION [2010] NSWIRComm 121 EX TEMPORÉ 1 This matter concerns an appeal by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales against the decision of Commissioner Ritchie delivered on 24 May 2010. That Union seeks leave to appeal and, if granted, appeal from the decision of the Commissioner. 2 In the Commissioner's decision he ruled upon an application brought by the Union during the course of industrial dispute proceedings. The Commissioner describes that application as an application for a redundancy award. The dispute proceedings were initiated by a notification of dispute by the subject Union dated 31 March 2010. In the section of the dispute notification entitled "The Question Dispute or Difficulty Concerning the Following Industrial Matters" the Union identified, among other things, that the subject matter of the dispute concerned "the current general offer to seek expressions of interest for voluntary redundancy is contrary to the New South Wales Government's 'Managing Excess Employees Policy'". It subsequently sought an award by way of relief as to the subject dispute, which award application was filed in the dispute proceedings on 19 April 2010. The Union sought, in that application, an award which was proposed to be entitled 'Crown Employees (Department of Industry and Investment - Redundancy Consultation) Award'. 3 During the proceedings before the Commissioner some preliminary matters came to attention. The first of those preliminary matters was an application for an interim order made by the Union which sought to restrain the Department of Industry and Investment, the respondent, from proceeding with offers of voluntary redundancy to its employees pending the arbitration and the determination of the proceedings. The second interlocutory issue was that raised by the Department, the respondent in these proceedings, by which it was argued that the application to which we have earlier referred was caught by the 'no extra claims' provisions of an award and a memorandum of understanding. The award provision in question was cl 8 of the Crown Employees (Public Sector - Salaries 2008) Award. The memorandum of understanding was an instrument reached between the New South Wales Government and the Union for the period 1 July 2008 to 30 June 2011. The operative clause in that respect was again cl 8. 4 In his decision, Commissioner Ritchie ruled upon the application to which we have referred by means of addressing the 'no extra claims' clause of that award and of the memorandum of understanding. In short, the Commissioner came to the view that the application was precluded by the 'no extra claims' clauses of those instruments. In the result, he determined the interim order in that light and vacated dates for hearing which had been fixed for the purposes of considering the application for what he described as "a redundancy award". Proceedings were thereby stood over. 5 The challenge in these proceedings comes in relation to that decision and in particular, whether or not the Commissioner was correct in his conclusion that the application was precluded by the 'no extra claims' clauses of the respective instruments. 6 Following the giving of that decision by Commissioner Ritchie, the respondent to these proceedings took the step of issuing letters to the affected employees (on 25 May) as to voluntary redundancies. Thus, the letters were issued after the giving of the decision by Commissioner Ritchie and before the filing of application for leave to appeal and appeal in these proceedings made on 27 May. It is unclear to us from the submissions of the parties what notice was given to the Union of the step taken by the respondent on 25 May. The matter seems to have gone forward upon the basis that the respondent considered itself unrestrained after the earlier undertaking that it had given to Commissioner Ritchie had lapsed upon the delivery of his decision. 7 The effect of those events is that the subject matter of the application which was pressed before Commissioner Ritchie and, indeed, the application for interim relief is spent. The work that the application and the interim order had to do was spent by the issuing of the letters in question and the taking up of the offers contained therein by the subject employees. 8 In consequence of that factor, after hearing Mr Gibian, of counsel, who appeared for the Union, both as to the question of leave and the merits of the appeal, we called upon Mr Benson, of counsel for the respondent to address on the question of leave only and then heard Mr Gibian in reply. We did so because those circumstances, that is, those giving rise to the issuing of the subject letters and the taking up of the offers in question, give rise to a question of utility in the appeal and that brought with it the question of whether, on ordinary principles, leave to appeal should be granted. 9 Not without some anxious reflection, we have come to the view that, in the circumstances we have described, leave to appeal should be refused because of the absence of utility in the appeal. In short, even if the appeal was upheld and decision of the Commissioner reversed there would be no practical operation for the granting of the application sought at first instance in the case of the subject employees of the respondent. 10 We have mentioned that we gave anxious consideration as to whether we should take that course because we have some considerable concerns about the course taken by the respondent in the subject proceedings. The decision to issue the letters and to have employees act upon them in the manner undertaken had the obvious effect of robbing the utility of the proceeding which had been undertaken by the Union with respect to the subject application. 11 The propriety of a respondent Department in this case acting in those circumstances with the haste involved in the issuing of the letters in question in this case does give rise to some serious questions. 12 There is not sufficient information before us as would enable us to conclude whether or not the Department issued a notice to the Union to the effect it intended to so act. 13 If it had not done so and the Union had thereby failed to act in consequence then another conclusion may have followed in relation to the leave judgment we have given than the one we have, in fact, delivered today. However, the doubt which remains in our minds in that respect as to whether notice was issued, whilst it be considerable, is not sufficient in our view to displace the proper conclusion that we have come to in relation to the refusal of leave based on grounds of utility. 14 But we would add this note of caution. Departments of the Crown come before the Commission in these proceedings including industrial proceedings as model litigants or the equivalent thereof. In circumstances where, as in this matter, interlocutory relief had been sought in the manner which it had and where the utility of any appeal may have been robbed by the taking of the action in question, at the very least it would have been appropriate for notice to be given before acting so that the other side of the equation in the industrial dispute and in particular the Commission would be given the opportunity of considering what if any steps should be taken in the circumstances that were then arising. The proceedings before the Commission were, after all, industrial proceedings and that brought obligations upon both sides as to how they should conduct themselves in all the circumstances. 15 There are two final observations that we would wish to make before concluding these proceedings. The first of those observations is that it does appear that to some extent proceedings before Commissioner Ritchie miscarried in relation to the manner in which the Commissioner attended to the question which was raised before him, that is, the question of whether or not interlocutory relief should be granted. It does appear to us that the Commissioner was wholly distracted from that consideration by the consideration of whether or not the 'no extra claims' clauses had been infringed. The usual considerations that may have been taken into consideration in relation to an application for interlocutory relief do not seem to have found or been given particular attention by the Commissioner. That is a matter of some significance in industrial proceedings such as these but is not a matter which is squarely raised by the appeal and we propose to say nothing further about it. 16 The second matter which requires attention is this. During the course of the hearing of the question of leave to appeal we raised with the parties essentially what was the status of the proceedings which had been brought under s130 of the Industrial Relations Act 1996 ('the Act'). It appears to us that it was common ground that those proceedings were subsisting at the time of the hearing of this appeal. So much seems to be clear, at least from the decision of Commissioner Ritchie, to stand those proceedings over generally awaiting a further communication. 17 There appears to be less agreement, however, as to whether any part of the subject matter of the dispute remained outstanding having regard to the determination of Commissioner Ritchie in para [47] of his decision to effectively dismiss the application for a redundancy award, although the Commissioner does not describe his decision thus. 18 We are of the view that there remains unabated and wholly subsisting in the dispute proceedings the subject matter of the dispute as described in the second bullet point of cl 4 of the notification of dispute. That conclusion must be reached because there Commissioner Ritchie only directed his attention vis-à-vis the question of 'no extra claims' to the application for a redundancy award. That application for a 'redundancy award', as he described it, brought with it particular considerations which were taken into consideration for the purposes of deciding whether or not the 'no extra claims' clauses of the respective instruments that we have earlier referred to precluded the application. 19 Different considerations will necessarily arise as to whether or not in a particular case the approach adopted by the Department in question was one consistent or not with the "Managing Excess Employees" policy. In that respect we express no view as to whether that issue is caught by the 'no extra claims' clauses of the respective instruments or as to whether that is a matter which may or may not be attended to by the Commission in the subject proceedings in any particular manner. We merely note for present purposes that the route of the proceedings including those proceedings on appeal are industrial proceedings under s130 of the Act and, in that respect, there is a subsisting dispute described by the initiated dispute notification. 20 In consequence of that decision we make the following orders: 1. Leave to appeal is refused; 2. The dispute proceedings before the Commission by way of a notification of dispute by the subject Union dated 31 March 2010 are extant. 21 We make no observations as to the continuance or otherwise of those proceedings before Commissioner Ritchie and we will leave it to the parties as to what further steps they take in that respect. _____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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