Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111

Industrial Relations Commission New South Wales Medium Neutral Citation: Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 Hearing dates: 31 March 2011; 1 April 2011 Decision date: 19 August 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President at [1], Walton J, Vice-President at [60], Haylen J at [119] Decision: (1) Leave to appeal is granted to deal with the status and role of the Policy Directive regarding redundancy raised in (c) of the grounds, but leave to appeal is refused in relation to the matters covered in (a), (b), (d) and (e) of the grounds for granting the appeal; (2) To the extent determined in this judgment the appeal is dismissed; (3) That declarations and orders be made as follows: (a) That there exists a binding contract between the Director-General of the NSW Health Service and the following persons: Miriam Alzamora Amal Rabie Michelle Roach Katherine Turner Dongmei Lu Marlene Lawler Margit Kent Daira Polis Margaret Kirkley Corazon Bautista Caterina Scarazza Kasthuri Santhariah Julianne Brisbane Robyn Rafton Lorraine Bateman Miriam Panol Jennifer Mellor Anne Brady Fay Smith Cheryl Hunter Sandra McDermott Peck Waldon Cornelia Jongsma Joanne Rogerson Ljubica Repic Jacqueline Jefferson Grace Mazi Siew Khim Seow (b) That the terms of the contracts referred to in Order (a) hereof are those set out in the letters of offer dated 17 August 2009 and 27 August 2009 and the acceptance of that offer on various dates (as set out in the table at [4] of this judgment) by the persons referred to in Order (a). (c) That the Director-General of the NSW Health Service wrongfully repudiated the contracts referred to in Orders (a) and (b) hereof. (d) That the following persons who have left employment on the dates recorded in the table in [4] of this judgment are entitled to a redundancy payment in accordance with the terms of their contract with the Director-General of the NSW Health Service: Miriam Alzamora Amal Rabie Michelle Roach Katherine Turner Dongmei Lu Grace Mazi Siew Khim Seow (e) That in the event the Director-General continues to refuse to honour the contracts referred to in Orders (a) and (b) hereof the following persons, upon termination of their employment other than for cause, shall be entitled to a redundancy payment in accordance with the terms of their contract with the Director-General of the NSW Health Service: Margit Kent Daira Polis Margaret Kirkley Corazon Bautista Caterina Scarazza Marlene Lawler Kasthuri Santhariah Julianne Brisbane Robyn Rafton Lorraine Bateman Miriam Panol Jennifer Mellor Anne Brady Fay Smith Cheryl Hunter Sandra McDermott Peck Waldon Cornelia Jongsma Joanne Rogerson Ljubica Repic Jacqueline Jefferson (f) That the persons referred to in Orders (d) and (e) are entitled to have any redundancy payment payable to them calculated on the basis of their period of service as at the date their employment terminated or terminates. (g) Costs are reserved. The respondent shall have 14 days to file and serve any submission regarding costs, with the appellant having a further 14 days in which to respond. Unless a party indicates they wish to make oral submissions on costs the question of costs will be determined on the papers. Catchwords: APPEAL - DECLARATIONS - Application by Crown in the Right of the State of NSW (Director General NSW Department of Health) to appeal from decision at first instance whereby declarations made that nurses employed at Sydney West Area Health Service entitled to redundancy pay having been offered such pay upon positions becoming voluntarily redundant - Whether new evidence should be admitted on appeal - Power of Industrial Court to provide declaratory relief - Scope of declaratory orders under s 154 of Industrial Relations Act 1996 - Standing of unions to apply for declaratory relief - Whether lack of privity of contract a bar to relief - Whether damages only cause of action - Whether entitlement of nurses to redundancy pay arose under contract or whether it was a statutory entitlement - Whether entitlement to redundancy pay where offers of voluntary redundancy withdrawn and employment not terminated - Repudiation of contract by employer - Whether orders made at first instance were declarations - Status and effect of Policy Directive - Whether leave to appeal should be granted - By majority appeal dismissed - Orders made Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth) Constitution Act 1885 (Cth) Government and Related Employees Appeal Tribunal Act 1980 Health Administration Act 1982 Health Services Act 1997 Industrial Arbitration Act 1940 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Police Act 1990 Public Service Act 1979 Cases Cited: Amcor Limited v Construction Forestry Mining and Energy Union (2005) 222 CLR 241 Aussie Airlines Pty Ltd v Australian Airlines Ltd and ors (1996) 68 FCR 406; (1996) 139 ALR 663 Australasian Oil Exploration Ltd v Lachberg [1958] HCA 51; (1958) 101 CLR 119 Australian Conservation Foundation Inc v The Commonwealth [1980] HCA 53; (1980) 146 CLR 493; (1980) 45 LGRA; (1980) 28 ALR 257; (1980) 54 ALJR 176 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124; (1986) 12 ALD 138; (1986) 71 ALR 73; (1986) 18 IR 431 Australian Nursing Federation v Alcheringa Hostel Inc [2004] FCA 375; (2004) 136 FCR 530; (2004) 138 IR 122 Australian Tramway Employees Association v Prahran & Malvern Tramways Trust (1918) 25 CLR 394 Beattie (o/b CBOA) v Commonwealth Bank [2006] NSWIRComm 238; (2006) 155 IR 295 Berwin v Donohoe [1915] HCA 79; (1915) 21 CLR 1 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSW LR 153 British Steel Corp v Cleveland Bridge Engineering Co Ltd [1984] 1 AII ER 504 Burwood Cinema Ltd and ors v Australian Theatrical and Amusement Employees Association [1925] HCA 7; (1925) 35 CLR 527; (1925) 31 ALR 282 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Crewdson v Department of Community Services and anor [2002] NSWIRComm 121 Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159; (2008) 71 NSWLR 633 Edwards v Santos Ltd [2011] HCA 8 Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales [1956] HCA 22; (1956) 94 CLR 554; (1956) 1 LGRA 206; [1956] ALR 614; (1956) 30 ALJR 166 Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 Gillies v Health Administration Corporation [2003] NSWIRComm 243 Health Administration Corporation v Crocker [2004] NSWIRComm 163; (2004) 138 IR 147 Holcombe & ors v Coulton & ors (1988) 17 NSWLR 71 Holly v The Director of Public Works and ors (1988) 14 NSWLR 140; (1988) ALD 43; (1988) 28 IR 270 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd [1988] unreported, BC8801158 Jager v Tolme & Runge [1916] 1 KB 939 Jarratt v The Commissioner of Police of New South Wales and anor ([2005] HCA 50; (2005) 224 CLR 44; (2005) 221 ALR 95 Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 Mahoney v Lindsay (1980) 33 ALR 601 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 NSW Nurses' Association v Crown in Right of the State of New South Wales (Director General, NSW Dept of Health) in respect of Sydney West Area Health Service [2010] NSWIRComm 125 Oil Basins Ltd v The Commonwealth [1993] HCA 60; (1993) 178 CLR 643; (1993) 117 ALR 338 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235 Police Association (NSW) v Commissioner of Police [2002] NSWIRComm 126; (2002) 123 IR 301 Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589 at 610; (1981) 147 CLR 589; (1981) 36 ALR 3; (1981) 55 ALJR 621 Public Employment Industrial Relations Authority v Public Service Association of New South Wales (re Scorzelli and ors) (1993) 49 IR 169 Public Service Board (NSW) v The Public Service Association (NSW) (1986) 14 IR 445 R v Turbet; Ex parte Australian Building Construction Employees & BLF (Loy Yang case) [1980] HCA 47; (1980) 144 CLR 335; (1980) 33 ALR 79; (1980) 55 ALJR 59 Shop Distributive and Allied Employees' Association v The Minister for Industrial Affairs for the State of South Australia [1995] HCA 11; (1995) 183 CLR 552; 129 ALR 191; (1995) 69 ALJR 558; [1995] 9 Leg Rep 2; (1995) 60 IR 11 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) [2000] NSWIRComm 124; (2000) 101 IR 131 Royal Insurance Co Ltd v Mylius [1926] HCA 49; (1926) 38 CLR 477 at 497; [1926] ALR 446; [1927] VLR 1 Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411 Union of India v Compania Naviera Aeolus SA [1962] 1 QB 1 West v Gwynne [1911] 2 Ch 1 Wiseu, Re (1983) 4 IR 67 WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68; (2002) 112 IR 332 Texts Cited: Breach of Contract, J W Carter, 2nd ed (1991) Law Book Company Declaratory Orders, P W Young QC, 2nd ed (1984) Butterworths "Equity: Doctrines and Remedies", 4th edition, Meagher, Gummow and Lehane, Butterworth's, 2002 "Perspectives on Declaratory Relief", Dharmananda and Papamatheos The Federation Press, 2009 Category: Principal judgment Parties: Crown in Right of State of New South Wales (Director-General of Health, NSW Department of Health) in respect of Sydney West Area Health Service (Appellant) New South Wales Nurses' Association (Respondent) Representation: Mr J Fernon SC with Mr R Warren of counsel (Appellant) Mr M Gibian of counsel (Respondent) Maddocks (Appellant) New South Wales Nurses' Association (Respondent) File Number(s): IRC 1242 of 2010 Decision under appeal Jurisdiction: 9105 Citation: NSW Nurses' Association v Crown in Right of the State of New South Wales (Director General, NSW Dept of Health) in respect of Sydney West Area Health Service [2010] NSWIRComm 125 Date of Decision: 2010-10-19 00:00:00 Before: Marks J File Number(s): IRC 163 of 2010