Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and State of New South Wales, Director-General of the Department of Premier and Cabinet [2013] NSWIRComm 4 Hearing dates: 05/02/2013 Decision date: 12 February 2013 Before: Backman J Decision: Subject to any further order of the Industrial Relations Commission of New South Wales, the Commission makes the following order: (1) No employee(s) shall be appointed on or before 29 March 2013 or such later date as may be ordered by the Commission for the position(s) of service centre manager at Lismore, Orange, Wagga Wagga, Tamworth, Dubbo, Port Macquarie, Tweed Heads South, Liverpool, Penrith, Parramatta, 19 York Street Sydney, Chatswood and/or Newcastle West and/or the position of contact centre manager at Newcastle with Service New South Wales. Catchwords: AWARD - Application for interim relief - application seeks to temporarily halt the recruitment process of management positions to Service NSW pending the hearing of its substantive application - relevant principles considered - whether prima facie case - balance of convenience - application for interim relief granted Legislation Cited: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Sydney Water Corporation v Australia Services Union (2005) 146 IR 388 Category: Interlocutory applications Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) State of New South Wales, Director-General of the Department of Premier and Cabinet (Respondent) Representation: Mr A Hatcher, SC (Applicant) Mr S Benson, of counsel (Respondent) W.G. McNally Jones Staff (Applicant) I.V. Knight Crown Solicitor Crown Solicitor's Office (Respondent) File Number(s): IRC 1270 of 2012 DECISION 1This is an application for an interim award or order under s 136(1)(d) of the Industrial Relations Act 1996 (the Act). The order, which was handed up in draft by the applicant, seeks the following: Subject to any further order of the Industrial Relations Commission of New South Wales, the Commission makes the following order: (1) No employee(s) shall be appointed on or before 29 March 2013 or such later date as may be ordered by the Commission to the position(s) of Service Centre Manager at Lismore, Orange, Wagga Wagga, Tamworth, Dubbo, Port Macquarie, Tweed Heads South, Liverpool, Penrith, Parramatta, 19 York Street Sydney, Chatswood and/or Newcastle West, and/or the position of Contact Centre Manager at Newcastle with Service NSW. 2The interim application arises in the context of a dispute between the parties which was notified under s 130 of the Act. The subject matter of the dispute concerns the process of appointment of staff to a new agency, which the respondent intends to establish, to be known as "Service NSW". 3Further material which provides some necessary background to the establishment of the new agency can be found in the affidavit of Ian Lambert, filed by the applicant, and in the affidavit of Michael Baldi, filed by the respondent. 4Mr Lambert, in his affidavit, deposes to the following matters: Service NSW is intended to be established as a Special Employment Division under Schedule 1, Part 3 of the Public Sector Employment and Management Act 2002 (PSEM Act). The purpose of Service NSW is to establish a "one-stop-shop" for servicing a range of transactions between the public and NSW currently performed by Roads and Maritime Services (RMS) registries, Birth, Deaths and Marriages (BDM) registries, and Fair Trading Centres. The physical premises of Service NSW Centres will primarily be established by closing and "rebadging" RMS registries. Of the first 19 Service NSW centres, 15 will be rebadged RMS registries, and 3 will be rebadged Fair Trading Centres. The respondent advised the applicant that recruitment for positions in Service NSW will involve existing employees in RMS, BDM and Fair Trading applying and competing for the available positions through an expression of interest process. Once an employee lodges an expression of interest, he or she will be subject to an assessment process carried out at a "recruitment centre". At least 600 positions will be deleted from existing agencies, principally RMS and Fair Trading, once Service NSW is established and operational. Those existing employees whose positions are deleted and who miss out on positions in Service NSW will be dealt with under NSW's Managing Excess Employees Policy. ... 5The effect of these initiatives, according to Mr Lambert, is that current employees in RMS, BDM and Fair Trading Centres whose positions will be affected by the restructure and who were merit selected for those current positions, are being required to apply and compete for positions within Service NSW through another recruitment and selection process. This process has already commenced with the opening of expressions of interest for the positions of Service Centre Manager and Contact Centre Manager at selected locations. However, on or around 21 December 2012, the applicant received advice from the respondents that the recruitment and appointment process to Service NSW had been halted pending the outcome of the present application for interim relief. 6The recruitment and selection process envisages three stages, nominated as Priority Stages 1, 2 and 3. Until 21 December 2012, the first stage was underway. The first stage in turn comprises two stages, explained by Mr Lambert in his affidavit as follows: This stage will include permanent employees identified by an agency as 'directly affected' for positions at, or below, the salary band of their substantive position, within the same locational area. The term 'same locational area' means within travelling distance of a substantive position's location. The second part of this first priority stage will include 'directly affected' permanent employees for positions at, or below, the salary band of their substantive position, whose substantive position is based at another locational area. This will be subject to business requirements. 7According to Mr Lambert, Priority Stage 1 of the recruitment and selection process requires affected employees to engage in the following procedure. In Priority Stage 1 employees of affected agencies will have to express interest in a position in Service NSW by creating a job profile on the Jobs NSW website and then lodging an expression of interest including preparing a work history including key responsibilities of positions held and organising referees. If an employee is then successful in progressing through to a "recruitment centre" then they will be required to attend a recruitment centre and perform approximately four activities including an interview and other activities including case studies, presentations, group tasks, role plays, online surveys and online simulation exercises. Following the recruitment centre attendance an employee will be advised as to whether they will be offered a role in Service NSW. 8Mr Baldi, in his affidavit, described the proposed set-up for the delivery of services: (i) Three 24/7 NSW Government telephone call centres (to be called Contact Centres); (ii) A number of one-stop shop fronts located across metropolitan and regional New South Wales (to be called Service Centres of which it is planned eighteen will be operational from 1 July 2013); (iii) A customer friendly web portal. 9According to Mr Baldi, the present intention is that the managers of the respective three Contact Centres, and an initial 18 Service Centres, would participate in a range of operational decisions required to establish each Centre. Mr Baldi has compiled a list of some thirteen management positions (one at a Contact Centre in Newcastle and the remainder at Service Centres in various locations) which he says the respondents will be "constrained" from filling if the interim order were to be granted. History of the proceedings 10The dispute first came before Staff J on 19 November 2012. His Honour convened a number of compulsory conferences. On 28 November 2012, his Honour made two Recommendations which are extracted below: (1) New positions in Service NSW should be divided into two categories: Category A will be comprised of positions which include or require new skills and responsibilities for the occupant and where there is no existing equivalent position in the Roads and Maritime Services; New South Wales Fair Trading; the Department of Attorney General and Justice or any other agency, such positions will be subject to the recruitment process proposed by the Department of Premier and Cabinet. Category B will be comprised of those proposed positions in Service NSW which do not require or involve new skills and responsibilities for the position, for example, frontline customer service positions. Such positions will have an existent or current equivalent position in the Roads and Maritime Services; New South Wales Fair Trading; the Department of Attorney General and Justice; and the Office of Environment and Heritage. Employees who fall within this category should be offered positions in Service NSW, subject to standard checks in respect of performance, skills and conduct matters. (2) In light of the New South Wales Government establishing Service NSW, I would recommend that all manager positions should be captured and should fall within Category A, regardless of whether they involve new skills and responsibilities or not. It follows, as I have already observed, that such positions will be subject to the recruitment process as proposed by the Department of Premier and Cabinet. 11On 4 December 2012, his Honour made a further two Recommendations: (1) The Department of Premier and Cabinet shall not be restrained from proceeding with the roll out of expressions of interest in respect of the employees named in what is termed "the Recruitment Schedule", a document which has been marked Exhibit 6 in these proceedings; (2) I further recommend that the parties engage in further conferences in respect of those employees that fall within what I have described as Category 2 as set out in my recommendation of 28 November 2012. 12The category of positions nominated by Staff J as Category A in the first Recommendation made on 28 November 2012 (referred to as Category 2 in the second Recommendation made on 4 December 2012) forms part of the subject matter of the present interim application. According to Mr Baldi, contrary to Staff J's Recommendation, the interim application seeks to restrain the respondents from filling the management and specialist positions pending the formal establishment of Service NSW. 13On 13 December 2012, Staff J issued a Certificate of Attempted Conciliation and the matter proceeded to arbitration. 14On 21 December 2012, the applicant lodged an application for a new Award to be known as Service NSW (Employment) Award (the substantive application). Schedule 1A to the substantive application constitutes the application for interim relief which is presently before the Commission. Proposed Clause 3 of the new Award headed "Employment" provides: (a) Where the Employer has determined to create new positions it will call for expressions of interest in those positions from employees of the affected agencies who are employed in equivalent positions within affected agencies and who have the skills to perform the duties of the position and/or who could acquire such skills with appropriate training and support. (b) Where more expressions of interest are received from employees in equivalent positions in the affected agencies than the number of new positions that exist in the Employer the Employer will apply a process of merit selection for appointment to the new positions. (c) Where fewer expressions of interest are received from employees in equivalent positions in the affected agencies than the number of new positions that exist in the Employer, the Employer will offer the new positions to the employees in equivalent positions who have made an expression of interest in appointment to such positions. 15The effect of proposed Clause 3 is to require Service NSW to invite expressions of interest for particular positions only from those employees in RMS, BDM and Fair Trading Centres who are employed in equivalent existing positions and who have the skills to perform the position and/or who could acquire such skills with appropriate training and support. Where expressions of interest are less than the number of positions, employees will be directly appointed to the available positions without the need for existing employees to compete for the new positions. Where the number of expressions of interest exceeds the number of available positions there will be a merit selection process, but this will be confined to those who hold equivalent positions. 16The interim application appears in Schedule 1A to the substantive application, and is set out in full below: SERVICE NSW (EMPLOYMENT) INTERIM AWARD OR ORDER Subject to any further order of the Commission, no employee(s) shall be appointed to any new position(s) with the Employer except in the circumstance where the number of the expressions of interest and/or applications for the new position(s) exceeds the number of new position(s) at a work location. 17In submissions, the applicant explained that it sought the interim award or order in order to preserve the subject matter of the litigation. The interim award or order, if made, would prevent appointments to positions within Service NSW except where a merit selection would be required in any event because the number of expressions of interest received from employees at a given existing work location exceeds the number of available new positions at that area location. 18The interim application came before me on 22 January 2013. On 23 January 2013, the parties handed up Short Minutes of Order by consent to which was attached Schedule A, headed "Respondents' Undertakings", which set out two undertakings. 19The Short Minutes of Order made on 23 January 2013 included Order 3 which granted expedition based on the parties' estimate of three days being required for the hearing of the applicant's substantive application. The respondents' undertakings are set out in full below: The Respondents give the following undertakings to the Industrial Relations Commission of New South Wales, on the basis that they are without prejudice to the Respondents' position at any future interlocutory or final hearing and do not involve any admission as to liability: (1) No employee(s) shall be appointed on or before 12 February 2013 to the new position(s) of Service Centre Manager, Contact Centre Manager, Concierge and any Specialist positions with Service NSW except in the circumstance where the number of the expressions of interest and/or applications received within Priority Stage 1 for the new position(s) from current employees at a work location exceeds the number of new position(s) at the same work location. (2) Subject to the first undertaking, no employee(s) shall be appointed on or before 29 March 2013 or such later date as may be ordered by the Commission to any other new position with Service NSW except in the circumstance where the number of the expressions of interest and/or applications received within Priority Stage 1 for the new position(s) from current employees at a work location exceeds the number of new position(s) at the same work location. 20The undertakings were accepted by the Commission. The effect of the undertakings is that there will be no appointments to positions other than Service Centre Manager, Contact Centre Manager, Concierge and Specialist Positions (the remaining positions) until 29 March 2013 or such later date as ordered by the Commission. The present application is therefore confined to those remaining positions in relation to which the undertaking from the respondents was operative until 12 February 2013. On that day, I granted the order the subject of the interim application and informed the parties that my reasons would be delivered as soon as is reasonably possible. This Decision constitutes my reasons for granting the order on 12 February 2013. Applicable law and legal principles 21Section 136(1)(d) of the Act confers upon the Commission the power to make interim orders in relation to disputes notified under s 130. Section 136(1)(d) provides: The Commission may, in arbitration proceedings, do any one or more of the following: ... (d) make any other kind of order it is authorised to make (including an order made on an interim basis). 22There was no issue between the parties that the relevant principles to be applied are those identified by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. The application of those principles was discussed by Boland J, President, in ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [31]-[36] as follows: [31] As ASMOF submitted, the exercise of the power to make interlocutory orders under s 89(7) is discretionary. As it was further correctly conceded, the Commission will not lightly interfere with an employer's contractual (or statutory) right to terminate the employment of an employee. However, the reliance by ASMOF on the approach identified by Mason ACJ in Castlemaine Tooheys Limited v The State of South Australia (1986) 161 CLR 148 at 153 to the granting or refusing of interlocutory orders is no longer correct. In Castlemaine, Mason ACJ considered that the plaintiff must show: § That there is a serious question to be tried: § That the plaintiff is likely to suffer irreparable injury for which damages will be an inadequate remedy: and§ That the balance of convenience favours the grant of the injunction. [32] Mason ACJ suggested (at 153) that the prima facie test formulated by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 was not of general application. However, in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46 the High Court returned to the test articulated in Beecham. In O'Neill, Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, said at [65] (references omitted): The relevant principles [governing interlocutory injunctions] in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks. [33] At [19], Gleeson CJ and Crennan J stated (references omitted): The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed. [34] Thus what the plaintiff must show is that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights asserted by the plaintiff and the practical consequences likely to flow from the order sought.[35] Further, given the decision in O'Neill and the endorsement of the 'two inquiry' approach in Beecham, it would seem that the issue of irreparable damage by reason of damages not being an adequate remedy, no longer stands as a separate consideration, but is one that comes under the second inquiry referred to in the judgment of Gummow and Hayne JJ, namely, "whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted" or, in other words, the balance of convenience test. [36] Gummow and Hayne JJ refer to preserving the status quo pending trial. The status quo may be the position of the parties at the time of the commencement of the proceeding. However, the defendant's allegedly wrongful conduct may have commenced by the time the proceeding is issued. In that case the plaintiff will seek to maintain the status quo pending trial in the sense that it wants the position to remain as it was before the defendant commenced to engage in the conduct complained of. That is the present case. 23An additional consideration identified by the applicant in submissions concerns the present industrial context in which the principles fall to be applied. According to the applicant, the principles should not be applied strictly or inflexibly. Instead, they may be used as a guide to achieve a fair and proper outcome. Support for this proposition may be found in the Full Bench decision in Sydney Water Corporation v Australia Services Union (2005) 146 IR 388. In that decision, the Full Bench referred to the applicable tests as offering useful guidance for the exercise of power to grant interim orders but added (at [36]) that, "it would be wrong to apply, strictly and inflexibly, what are essentially private law and equity principles to the full range of industrial disputes under Chapter 3 of the Act". The proper approach governing applications under s 136(1)(d) of the Act was set out by the Full Bench at [37] of the decision: The Commission, in using its powers under the Act to conciliate, arbitrate and generally facilitate the resolution of industrial disputes, is engaged in an undertaking considerably removed from the adjudication of individual civil grievances. In furthering the objects of the Act (including the promotion of efficiency and productivity in the economy of the State and providing for the resolution of industrial disputes in a prompt and fair manner with the minimum of legal technicality), it is vital that the Commission recognise the broad discretion granted by the Act to fashion appropriate relief by reference to the merits of the industrial dispute itself and the steps necessary to resolve it. This will involve a variety of considerations, some of which may include those deriving from private litigation, but more usually will include the public interest in managing the industrial dispute in a fair and just manner with minimum disruption and disputation. 24With these principles in mind, the Commission proposes to consider the present application by reference to the "two inquiry" approach in Beecham, keeping in mind the remarks of the Full Bench in Sydney Water Corporation to the effect that the application arises in the context of an industrial dispute which includes as a relevant consideration the public interest in managing the dispute in a, "fair and just manner with minimum disruption and disputation". Whether the applicant has made out a prima facie case 25In written submissions, the applicant relied on four matters in establishing the first test, namely, whether it has made out a prima facie case. The matters arise in the context of the respondents' proposed recruitment process which the applicant contends is unfair and unjust. The four matters are: (a) existing employees will have to apply for positions which are very substantially the same as their existing positions for which they have already been merit selected; (b) such existing employees face the possibility of missing out on positions the same as their current positions, in circumstances where they have no adverse performance or disciplinary record, and consequently being made redundant when there is work available in Service NSW which they are capable of performing; (c) there is no process of independent appeal from Service NSW recruitment decisions; and (d) it is likely that there will be a selection bias against many existing employees by reason of, for example, their age or health not fitting into the intended service culture of Service NSW. (a) Substantial similarity between existing and proposed positions 26Mr Lambert, in his affidavit, attests to a substantial similarity between the tasks, skills and responsibilities of the management positions to be filled in Service NSW and the equivalent positions in affected agencies. His conclusion is based on documentation that he received including Service NSW position descriptions for the positions of Service Centre Manager and Contact Centre Manager (one position). He also relied on comparisons, undertaken by Mr Aaron Jones, an industrial officer of the applicant, of proposed Service NSW positions (by reference to the duties, skills and responsibilities) with the equivalent positions in the affected agencies. 27Mr Baldi, in his affidavit, did not accept that the positions in the existing agencies are equivalent to the positions to be created to staff Service NSW. He said it was his understanding that there are "generally substantial differences", which justify the desirability of undertaking a formal recruitment process on merit. 28Unlike Mr Lambert, however, Mr Baldi did not base his assertions on any analysis of, or reliance upon, relevant documentation. Rather, his assertions appear to be largely based on his understanding without any reference to material underpinning the understanding. 29The Commission therefore, accepts, for the purposes of the present application, that there exists a substantial similarity between the existing and proposed positions. The issue becomes whether requiring the incumbent managers to apply for positions within Service NSW which are substantially similar to their current positions, for which they have been merit selected, demonstrates that the proposed recruitment process is, prima facie, unfair and unjust. 30The applicant characterised its case on this issue is not so much about the fairness or otherwise of the proposed merit selection process, but whether an employee who has been merit selected for a position, and who has occupied that position for some time, should have to re-apply for the same, or substantially similar, position, that is, whether there should be a merit selection, at all. 31In contending to the contrary, the respondents relied on Annexure F to Mr Baldi's affidavit to demonstrate there are a number of persons who are also directly affected by the restructure and who have equal rights for priority consideration. 32Annexure F discloses that in relation to a number of management positions there is more than one applicant. Moreover, those applicants would appear to possess similar qualifications at the same level (referred in the Annexure as "On Grade") as the resident agency manager. However, as the applicant points out, whether or not other applicants for the same position occupied by the resident manager will be treated unfairly, if its substantive application is successful, is a matter for final hearing. It is sufficient that the applicant at this stage demonstrates that it has an argument of substance. The applicant also contended on this issue that at this interim stage it cannot be assumed that other applicants for positions occupied by a resident manager will miss out by not taking part in the merit selection process because they already hold substantive positions which they should also be able to keep without having to take part in a further merit selection process. 33When these matters are considered in combination, it is my view that the applicant has demonstrated that the proposed recruitment process is prima facie unfair in that resident managers will be required to re-apply for positions which are substantially similar to those positions they currently occupy. (b) possibility of existing employees being unsuccessful where no adverse performance records exist and where capable of performing the work in Service NSW 34The parties' submission with regard to this second matter, relied upon by the applicant to make out a prima facie case, are similar to the submissions relied upon on the first matter. In addressing this second matter, the respondents sought to emphasise that although the existing employees may miss out on comparable positions available in Service NSW, they are competing with other applicants whose tenure is equally at risk. It was readily conceded by the respondents that the existing employees were not the subject of adverse performance issues. As for the possibility of being made redundant, the respondent relied upon separate government policies dealing with managing excess employees which provide for fair conditions. 35The applicant's primary contention was that the proposed recruitment process by reference to this second matter was unfair for the same reasons relied upon in relation to the first matter. According to the applicant, there will be no prejudice to other internal applicants for the same positions held by the resident managers because those other applicants hold their own substantive positions. 36I conclude, based on the issues ventilated with regard to the first two matters relied upon by the applicant, that the evidence received at this interim stage demonstrates a sufficient likelihood of success of the substantive application. (c) no process of independent review 37During the conciliation proceedings, Staff J proposed that the respondents set up an informal appointment review process in order to provide assistance to dissatisfied applicants. The respondents agreed to the proposal and offered to establish an Assisted Appointment Review Process. According to Mr Baldi, the process would provide an informal appeal mechanism to an aggrieved applicant who missed out on selection. It is envisaged that the process will involve two steps. The first step allows an aggrieved applicant an opportunity to obtain feedback and other relevant information with regard to the reasons for non-selection, and also to be informed of any available options for assisted review . The second step contemplates the involvement of the Commission. In brief, where there is a request for assisted review of the recruitment process the request is submitted to the Commission within seven days, after which the Commission conducts a review and makes recommendations. 38According to the respondents, its agreement to adopt and implement this informal process tends to contradict the applicant's assertion that there is no process of independent appeal from Service NSW decisions. 39On the other hand, as the applicant pointed out, any such independent review process under the auspices of the Commission would lack legal force for two reasons. First, it does not involve any restraints upon the capacity of the respondents to make an appointment pending an appeal. Secondly, under the terms of the proposal, all the Commission can do is make Recommendations. I also note that any such independent review process would require the endorsement of the Commission. Given these factors, the applicant's contention that the recruitment process does not include a mechanism for independent appeal must be accepted at least at this prima facie stage. Even if the Commission were to give its endorsement to the proposal, in its current form, it would lack the means of enforcing its decisions. (d) likelihood of selection bias 40The fourth matter relied upon by the applicant cannot be accepted. It is entirely speculative to suggest that there may be bias in the selection process by reason of age or health, for example. The proposed recruitment process involves selection for the positions based on merit. Implicit in that process is adherence to relevant government policies such as the observance of anti-discrimination and equal opportunity policies, as well as relevant legislative requirements. 41In summary, it is my view that the evidence placed before the Commission demonstrates, prima facie, that the proposed selection process contains elements of unfairness, at least in relation to the first three matters upon which reliance was placed. This, in turn, facilitates a conclusion that the applicant has reasonable prospects of success for obtaining the relief sought in the substantive application. Balance of Convenience 42The respondents relied on the factor of delay as weighing heavily against the granting of the interim order. Mr Baldi explained in his affidavit that at present, key personnel appointed to senior management positions in Service NSW are working as part of a Service NSW project team to implement the government's decision to have Service NSW established and operational with effect from 1 July 2013. The intention is that the managers of the respective three contact centres and an initial 18 service centres will participate in a range of operational decisions required to establish each of those centres. According to Mr Baldi, any delay in appointing persons to the 13 or so management positions will cause delay to the whole recruitment process and place in jeopardy the achievement of the government's target of having the new services available to the citizens of New South Wales on 1 July 2013. It was submitted by the respondents that the balance of convenience favours Service NSW being able to proceed with the appointment of staff to those management positions in order to proceed with the recruitment process. 43In contending to the contrary, the applicant relied on two particular dates. First, according to Mr Balid, the target date for the creation of Service NSW is from 18 March 2013. Therefore, until that time no person can be employed in Service NSW. Secondly, the respondents' undertakings, accepted by the Commission are currently in force until 29 March 2013. The effect of the undertakings is that no appointments to positions within Service NSW will be made until 29 March 2013 (as already noted these undertakings do not apply to the 13 or so management and specialist positions the subject of the interim application). According to the applicant, the dates are indicative of a delay of relatively short duration, in the order of some four weeks. 44The applicant on this issue of delay also relied upon the consent orders made by the Commission on 23 January 2013. Those orders included an order for expedition of the hearing of the substantive application. Subject to the availability of the Commission to hear the case the order for expedition provides some support for the contention that any delay caused by the granting of interlocutory relief will be short. 45The applicant also contended that in the event Service NSW, once established, has any staffing requirements which must be met before the hearing of the substantive application, s 86 of the Public Sector Employment and Management Act 2002 (PSEM Act) provides for the secondment of staff to Service NSW. The section also provides for the making of temporary arrangements for nominated staff to perform any work that may be required to be done. In addition, the orders sought by the applicant would not stop any selection process from continuing but would merely prevent the final appointment. 46In oral submissions addressing s 86 of the PSEM Act, the respondents characterised the applicant's submissions with regard to s 86 of the PSEM Act as "totally unsatisfactory". This is because any persons appointed on a temporary basis will not have an assurance that they will be substantively appointed to new positions for which they have been merit selected prior to the establishment of Service NSW. 47A further factor relied upon by the respondents concerned the recommendations made by Staff J. According to the respondents, Justice Staff expressly recommended that the management and specialist positions (the subject of Category A) ought be subject to the respondents' proposed recruitment process. The applicant's interim application was said to undermine the intent of the recommendation, which provided a cogent reason for refusing to grant the interim application. In oral submissions, the applicant described this submission as misplaced because recommendations made by the Commission do not affect any conclusions about the merits of the case. Rather, they are made in order to facilitate a resolution of the issues in dispute. 48In submitting that the balance of convenience favours the granting of the interim application, the applicant characterised as a "critical consideration" the need to preserve the subject matter of the litigation, that is, the 13 or so resident managers would be deprived of their rights to litigate the issues raised in the substantive application. Put another way, unless restrained by an order of the Commission, persons will be appointed to the positions before the applicant's case on the substantive application can be heard by the Commission. 49The respondents made no submission addressing this factor. 50In summary, both parties relied upon the factor of delay (although for different reasons) as relevant to the balance of convenience. The applicant also relied on the need to preserve the subject matter of the litigation. The respondents relied upon Staff J's recommendations as providing cogent support for the contention that the balance of convenience favours a refusal to grant the interim order. 51Dealing first with the factor of delay, it does not seem to me that the delay which may be occasioned, in the event the interim order were granted, is of such significance as to cause prejudice to the respondents in pursuing the merit selection process and meeting the target date for the establishment of Service NSW. Although the extent of the delay cannot be predicted with any real accuracy, it is likely to be relatively short given the order for expedition, although this is, of course, subject to the availability of the Commission to hear and determine the substantive application within the appropriate timeframe. As to the significance of Staff J's recommendation (with regard to those management positions falling within Category A), the Commission agrees with the applicant that the primary purpose of recommendations made by the Commission is to facilitate and aid the settlement of disputes. In attempting to achieve this, the Commission is not called upon to decide the merits of an application. 52Finally, there is merit in the applicant's contention concerning the need to preserve the subject matter of its application pending its hearing and determination. If the interim order were not granted, the respondents will proceed with the making of appointments to Service NSW thus rendering the hearing of the substantive application futile and frustrating the Commission's proper processes. It is noteworthy that the respondents made no submissions addressing this particular factor. 53When these factors are carefully weighed in the balance, the result must favour the granting of the applicant's interim application. 54One further matter should be mentioned for completeness. According to the respondent, the applicant's application brought under s 136(1)(d) of the Act must take into account s 16(4) of the Act. This was said to be because of the wording of s 136 (1)(d), which provides that the Commission may make any order, "it is authorised to make". According to the respondents, those words mean, authorised in accordance with the provisions of s 16(4). Section 16 (4) provides for an award to be made on an interim basis in, "special circumstances". The submission was not further developed by the respondents. Accordingly, the Commission is unable to give it proper consideration. In any event, it is my tentative view that the critical consideration identified by the applicant in relation to the need to preserve the litigation could constitute, "special circumstances", which may justify the making of the interim order. Order 55In IRC 1270 of 2012, the Commission grants the applicant's application for an interim award or order in the terms set out in Schedule 1A of the applicant's application for a new award to be known as Service New South Wales (Employment) Award (the substantive application). The interim order is in the following terms: Subject to any further order of the Industrial Relations Commission of New South Wales, the Commission makes the following order: (1) No employee(s) shall be appointed on or before 29 March 2013 or such later date as may be ordered by the Commission for the position(s) of service centre manager at Lismore, Orange, Wagga Wagga, Tamworth, Dubbo, Port Macquarie, Tweed Heads South, Liverpool, Penrith, Parramatta, 19 York Street Sydney, Chatswood and/or Newcastle West and/or the position of contact centre manager at Newcastle with Service New South Wales. * * * * * * DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2013