Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152 Hearing dates: 26, 28, 29, 30 September 2011, 24 October 2011 Decision date: 11 November 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: Orders and Directions The Court makes the following orders: (1) Orders (1) and (2) of the PSA's amended orders that were Exhibit 2 in the proceedings are refused. (2) Orders (1) and (2) of the orders sought in the ASU's application filed on 13 September 2011 are refused. (3) Costs are reserved. The Court makes the following directions: (1) The parties shall confer on the form of orders to be made under s 106 of the Industrial Relations Act 1996 in light of this judgment. The applicants shall file the short minutes of order they seek (whether by consent or otherwise) by 4.00pm on Friday 18 November 2011. (2) The relevant parties shall confer on the implications of this judgment for those 20 Listed Officers who did not give evidence in the proceedings to which this judgment relates. (3) The parties shall confer on the question of costs. (4) If there is agreement in relation to (2) and (3) hereof the parties shall file the agreed terms by 4.00pm on Friday 18 November 2011. If there is disagreement, the parties shall file an outline of their respective positions by 4.00pm on Friday 18 November 2011. (5) The parties shall report to the Court on the outcome of their discussions at 9.30am on Monday 21 November 2011. Catchwords: DECLARATORY RELIEF - Applications by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and the Australian Services Union for declaratory relief in relation to contracts of employment of public sector employees who had been declared excess - Whether government policies relating to the management of excess employees formed part of the contracts of public sector employees who had been declared excess - Whether the services of any of the employees may only be lawfully dispensed with in accordance with s 56 of the Public Sector Employment and Management Act 2002 - Consideration of whether the employment of public sector employees was based in contract - Whether policies were expressly incorporated into employment contracts - Whether policies were incorporated by representation into employment contracts - Intention to form legal relationships - Orders made refusing orders for declaratory relief