Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v NSW Department of Education and Communities [2012] NSWIRComm 96

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v NSW Department of Education and Communities [2012] NSWIRComm 96 Hearing dates: 1, 2, 16 March 2012 and 20 July 2012 Decision date: 31 August 2012 Jurisdiction: Industrial Relations Commission in Court Session Before: Boland J President at [1]; Walton J Vice-President at [78]; Staff J at [79] Decision: The Full Bench makes the following orders: (1)The parties are to confer on the terms of the Crown Employees (National Arts School Transfer Payment) Award in accordance with this decision. (2)Subject to this decision, the Award shall provide for the payment to Mr Daly and to Mr Dillon of a transfer payment to each person equivalent to 13 weeks' pay. (3)The parties shall file short minutes of order with Staff J consistent with orders (1) and (2) hereof within 14 days of this decision. His Honour shall subsequently relist the matter to finalise the orders. Catchwords: AWARD - New South Wales public sector - application for transfer award - transfer of functions from government department to corporation - two employees accepted employment with corporation - whether entitled to compensation for detriment suffered in respect of change of conditions of employment - whether detriment gives rise to transfer payment - consideration of individual circumstances - redundancy principles considered - principles in making transfer award - alteration in terms and conditions of employment - balancing factors - particular circumstances of the case - relevance of alternate employment - whether award prohibited by government wages policy - transfer award made, s 146(2) s 146C Industrial Relations Act 1996 Legislation Cited: Employment Protection Act 1982 Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Public Sector Employment and Management Act 2002 Cases Cited: Clerks (State) Award, Re (Redundancy Case) [1976] AR (NSW) 417 Food Preservers Union of Australia v Wattie Pict Ltd (1975) 172 CAR 227 Fryar v System Services Pty Ltd (1996) 137 ALR 321 Government Cleaning Service (Privatisation) Award (No 2), Re (1994) 55 IR 199 Government Cleaning Service (Privatisation) Award (No 3), Re (1995) 59 IR 348 National Union of Workers v Tontine Fibres [2007] AIRCFB 1016; (2007) 168 IR 143 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Corrective Services [2009] NSWIRComm 111 R v Industrial Commission of South Australia: Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 Termination, Change and Redundancy Case (1984) 8 IR 34 United FM Group Services Pty Ltd t/as United KFPW v National Union of Workers, New South Wales Branch [2006] NSWIRComm 391; (2006) 158 IR 336 Westfield Holdings v Adams [2001] NSWIRComm 293; (2001) 114 IR 241 Category: Principal judgment Parties: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (Applicant) New South Wales Department of Education and Communities (Respondent) Representation: Mr M Gibian of counsel (Applicant) Mr P Ginters of counsel (Respondent) W G McNally Jones Staff & Co. (Applicant) NSW Department of Education and Communities (Respondent) File Number(s): IRC 375 of 2011