Industrial Relations Commission New South Wales Medium Neutral Citation: The Australian Workers' Union, New South Wales and Chief Executive, Office of Environment and Heritage [2015] NSWIRComm 15 Hearing dates: 21 April 2015; 5 June 2015 Date of orders: 10 June 2015 Decision date: 10 June 2015 Jurisdiction: Industrial Relations Commission Before: Kite AJ Decision: The Commission makes the following orders: (1) The application for interim order is dismissed. (2) The application is dismissed. Catchwords: DISPUTE – industrial matters Legislation Cited: Government Sector Employment Act 2013 Government Sector Employment Rules 2014 Industrial Relations Act 1996 Public Service Act 1979 Public Sector Employment and Management Act 2002 Public Sector Management Act 1988 Technical and Further Education Commission Act 1990 Uniform Civil Procedure Rules 2005 Cases Cited: Public Service Association (NSW) v Public Service Board (NSW) (1985) 14 IR 414 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries – Fisheries Division) [2013] NSWIRComm 64 Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment Award [2003] NSWIRComm 405; (2003) 129 IR 369 Re New South Wales TAFE Commissions (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 Category: Principal judgment Parties: The Australian Workers' Union, New South Wales (Applicant) (Respondent on the Motion) Office of Environment and Heritage (Respondent) (Applicant on the Motion) Representation: Counsel: P Ginters of counsel (Respondent) (Applicant on the Motion) Solicitors: The Australian Workers' Union, New South Wales (Applicant) (Respondent on the Motion) Office of Environment and Heritage (Respondent) (Applicant on the Motion) File Number(s): IRC 868 of 2014 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Chief Industrial Magistrate's Court Date of Decision: 27 June 2014 Before: Goodwin LCM sitting as Acting CIM File Number(s): CIM 196197 of 2013 DECISION 1. In this matter, The Australian Workers' Union, New South Wales ("AWU") lodged a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 ("IR Act") with respect to three AWU members employed within National Parks and Wildlife Service NSW who are engaged as temporary employees. The Office of Environment and Heritage – National Parks and Wildlife Service ("OEH") was named the respondent to the dispute notification. 2. On 19 February 2015, following an attempted conciliation conference, I issued a certificate in accordance with s 135(2) of the IR Act. Thereafter, I directed the AWU to file and serve by 26 February 2015 a document specifying the relief it seeks and the grounds and reasons in support. 3. On 26 February 2015, the AWU provided to the Commission a document specifying the relief sought as follows: The Commission uses its disputes settling power in section 136 of the Industrial Relations Act to direct the employer to convert the existing temporary employment of Messrs Dean Brown, Kane Cleal and Jarrod Deed to ongoing employment in the roles and at the classification level performed by them as at 19 February 2015. Alternatively, the Commission direct the employer to properly consider and decide the question of conversion to ongoing employment of the above temporary employees, by applying all the relevant Rules, policy and guidance. The question to be determined exclusively on the basis of relevant considerations arising from the identified Rules, policy and guidance. 1. On 10 March 2015, the OEH filed a Notice of Motion seeking Orders under rule 12.11 and/or 14.28 of the Uniform Civil Procedure Rules 2005 striking out or dismissing the Dispute Notification lodged by the Applicant on 5 December 2014. This decision deals with that Motion. It also deals with an application for interim relief sought by the AWU. Grounds and reasons 1. The grounds and reasons in support of the respondent's motion were, inter alia, that: 1. The effect of s 58(6) of the Government Sector Employment Act 2013 ("GSE Act") is to expressly declare that any "matter, question or dispute" relating to the engagement (or failure to engage) a person as a non-executive employee is not an industrial matter for the purposes of the IR Act. 2. Section 58(7) of the GSE Act provides: No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. 1. The effect of ss 58(6) – (7) is to limit the jurisdiction of the Commission to deal with matters that would, in the absence of those sections, be considered "industrial matters". 2. Section 85(1) of the GSE Act removes any ambiguity as to the supremacy of s 58 over provisions in the IR Act. 3. The Notification and the relief sought as expressed in [3] above are impermissibly directed at, or related to, the failure to "engage" temporary employees to ongoing employment as non-executive employees in a way which accords with the applicant's view of how the respondent's Chief Executive (or delegate) ought to exercise his or her discretion under rule 12 of the Government Sector Employment Rules 2014 ("GSE Rules"). 1. The respondent read the affidavit of Tony O'Donnell sworn 9 March 2015 without objection. Legislative Framework 1. It is convenient to set out the relevant provisions of the GSE Act relied upon by the OEH, as well as relevant provisions of the IR Act. 2. Sections 20 and 22 of the GSE Act, found in Division 1 of Part 4, relevantly provide: 20 The Public Service The Public Service of New South Wales consists of those persons who are employed under this Part by the Government of New South Wales in the service of the Crown. … 22 Departments and other Public Service agencies (1) Public Service employees are employed in: … (b) Public Service executive agencies related to Departments (listed in Part 2 of Schedule 1), or … 1. Under Part 2 of Schedule 1 of the GSE Act, "The Office of Environment and Heritage" is listed as a Public Service executive agency, with the head of the agency being the Chief Executive of the Office, and the related Department being the Department of Planning and Environment. 2. Division 3 of Part 4 of the GSE Act relates to Heads of other Public Service agencies. Sections 28(1) and 31(1) provide: 28 Heads of agencies other than Departments (1) The head of a Public Service agency (other than a Department) is the holder of the office specified in Part 2 or 3 of Schedule 1 in relation to the agency concerned. … 31 Employer functions of heads of agencies (other than Departments) (1) The head of a Public Service agency (other than a Department) may, subject to this and any other law, exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the employees of the agency (other than Public Sector senior executives of an agency that is related to a Department). … 1. Sections 43(1) and 44(1) relevantly provide: 43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment: (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. … 44 Conditions of engagement (1) The engagement of a Public Service non-executive employee may be made subject to conditions notified to the employee on his or her engagement. … 1. Section 58(6) and (7) of Division 7 of Part 4 of the GSE Act relevantly provide: 58 Industrial or legal proceedings excluded … (6) The engagement of, or the failure to engage, a person as a non-executive employee, or any other matter, question or dispute relating to any such engagement (or failure to engage) is not an industrial matter for the purposes of the Industrial Relations Act 1996. (7) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of a matter that is declared by this section not to be an industrial matter for the purposes of the Industrial Relations Act 1996. … 1. Section 85(1) provides: 85 Operation of industrial relations and superannuation legislation (1) This Act does not affect the operation of the Industrial Relations Act 1996. This subsection does not limit section 58 (Industrial or legal proceedings excluded) and section 74 (Excess employees-jurisdiction of Industrial Relations Commission). … 1. The term "industrial dispute" is defined in the Dictionary to the IR Act as: A dispute (including a question or difficulty) about an industrial matter 1. Section 6(1) of the IR Act defines the term "industrial matters" as: Matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. 1. Sections 58(6) and (7) of the GSE Act were expressed in materially similar terms to predecessor Public Sector legislation, in its various forms. It is helpful to set out those relevant sections as they appeared in the predecessor legislation. 2. Section 65A of the Public Service Act 1979 provided: (1) The appointment or failure to appoint a person to a vacant position in the Public Service, or a matter, question or dispute relating thereto, is not an industrial matter for the purposes of the Industrial Arbitration Act, 1940. … (6) Without affecting the Government and Related Employees Appeal Tribunal Act, 1980, no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, shall lie in respect of – (a) any certificate or report referred to in subsection (5); (b) any decision, proceeding, step or other matter involved in the giving or making of any such certificate or report; or (c) the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed with the dilated validity or invalidity of any such appointment. 1. Sections 27(1)-(3) of the Public Sector Management Act 1988 provided: 27 Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996. (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. 1. Sections 22(1)-(3) of the Public Sector Employment and Management Act 2002 provided: 22 Legal proceedings not to be brought in respect of appointments etc (1) The appointment or failure to appoint a person to a vacant position in the Public Service, or any matter, question or dispute relating to such an appointment or failure, is not an industrial matter for the purposes of the Industrial Relations Act 1996 (other than Part 7 of Chapter 2 of that Act). (2) Subsection (1) applies whether or not any person has been appointed to the vacant position. (3) No proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment or failure to appoint a person to a position in the Public Service, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment. 1. It is also important to set out rule 12 of the Government Sector Employment Rules 2014 which is relied upon by the AWU for the purpose of this matter. Rule 12 provides: 12 Converting temporary or term employment to ongoing employment at-level (1) An agency head may convert the temporary or term employment of a person to ongoing employment in the agency if the person has been employed in temporary or term employment for a period of at least 12 months and the ongoing employment is at-level. (2) The conversion to ongoing employment under this rule: (a) must be based on the results of a comparative assessment after external advertising (whether a previous comparative assessment for the role concerned or a new comparative assessment) and on the employee's most recent performance under the agency's performance management system, and (b) is subject to the satisfactory conduct of the employee. (3) The Commissioner may, on application by the head of a Public Service agency, determine that the conversion to ongoing employment at-level of an existing temporary employee (or class of existing temporary employees) specified in the determination is not required to comply with subrule (2). An existing temporary employee is a person referred to in subrule (1) who: (a) is currently employed in the agency as a Public Service non-executive employee, and (b) is an existing temporary employee as referred to in clause 8C of Schedule 4 to the Act. (4) If such a determination is made in relation to an existing temporary employee, the agency head may, without complying with subrule (2), convert the person's employment to ongoing employment if the agency head is satisfied that the person has the qualifications, experience, standard of work performance and capabilities to enable the person to perform the duties of the role to which the person is to be assigned in the ongoing employment. (5) A conversion to ongoing employment in accordance with subrule (4) is to be completed by no later than 23 February 2017 or such earlier date as may be specified in the determination. (6) An application for a determination by the Commissioner under this rule must specify the following: (a) the existing temporary employees or class of existing temporary employees to which the application relates, (b) the reasons why the exemption from subrule (2) is required, (c) a timeframe for the conversion (if it is to occur) of existing temporary employees to ongoing employment in accordance with the exemption, (d) a timetable setting out the key milestones that will enable the agency to achieve that timeframe.3 (7) A determination by the Commissioner under this rule is to be in writing and may be varied or revoked by a further determination. (8) The conversion to ongoing employment of an existing temporary employee in accordance with clause 8C (4) of Schedule 4 to the Act does not require the approval of the Commissioner. Consideration 1. Mr P Ginters of counsel for the OEH submitted that the dispute notification, and the relief sought by the AWU as specified in its communications on 26 February 2015 "are impermissibly directed at, or related to, the question of the 'engagement of', or the 'failure' of the OEH to engage temporary employees to positions of ongoing employment as non-executive employees." Counsel for OEH submitted: The effect of sections 58(6) and (7) is to limit the jurisdiction of the Commission to deal with matters that would, in the absence of such provisions, be considered "industrial matters". 1. The OEH further noted that ss 58(6) and (7) appeared in predecessor public sector legislation in materially similar terms, such that the section excludes "from the ambit of an industrial matter a matter, question or dispute relating to the appointment/engagement of (or failure to appoint/engage) a person to public service employment". 2. The OEH referred to various authorities that considered the predecessor provisions to s 58 of the GSE Act: Public Service Association (NSW) v Public Service Board (NSW) (1985) 14 IR 414; Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment Award [2003] NSWIRComm 405; (2003) 129 IR 369; Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries – Fisheries Division) [2013] NSWIRComm 64. 3. The AWU contended that the essential industrial matter in the dispute notification is the claim that the "length of service as temporary officers" of a number of temporary employees "has exceeded the maximum period prescribed by the Award". The relevant Award is the Crown Employees (Office of Environment and Heritage – Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award. 4. The AWU rejected the OEH's contention that the dispute notification is directed at, or related to the engagement (or the failure to engage) within the meaning of s 58 of the GSE Act. It was submitted that the industrial matter stems from the "existing rights of already engaged employees." 5. It was further submitted that: Reference to "the person's employment" is a reference to something that is pre-existing and which continues without interruption as the person is "assigned" to a role in the ongoing employment. We think this argues strongly that conversion of temporary employment to ongoing employment is not the same as the engagement or failure to engage a person to public sector employment. 1. On this issue, the OEH submitted that: …an award which sought to provide for the conversion of Public Service casual employees to ongoing (permanent) employment would be caught by the terms of sections 58(6) and (7). See for example, Re New South Wales TAFE Commissions (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 esp. at 362.2-3, 369.4-.5 per Wright and Schmidt JJ; and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries – Fisheries Division) [2013] NSWIRComm 64 at [2], [30]-[39]. 1. In Re New South Wales TAFE Commissions (Teachers and Other Educational Staff) Salaries and Conditions Award 1996 (1999) 123 IR 360 ("TAFE Case"), Wright and Schmidt JJ said at 368-369: While in the ordinary case the appointment or failure to appoint a person to a position will be an ''industrial matter'' as defined in the 1996 Act and an award made in respect of such a matter may properly be characterised as an award concerning a ''condition of employment'', such a matter arising at the TAFE Commission is taken beyond the Commission's award making power by s 19 of the TAFE Act. It follows that there is power in the TAFE Commission to appoint staff on merit and to do so on conditions of employment fixed by the TAFE Commission or by regulation. That power is subject to the Commission's award making power under the 1996 Act, except as to any award regulating the appointment or failure to appoint persons to the staff of TAFE. By virtue of the limitation imposed by s 19 of the TAFE Act, the Commission has no power to make an award as to such matters. As there is no ambiguity on the face of these statutory provisions, it follows that the question which requires our determination is whether the claim (or any part of it), sought to be advanced in this case by the Federation, as in the Ombudsman's case, is beyond the Commission's power as it relates to the appointment or failure to appoint persons to the staff of the TAFE Commission. In so far as the claim seeks an award which requires particular part-time casuals employed under the award to be appointed to part-time positions or requires the appointment of temporary part-time staff to permanent part-time positions to which they are not presently appointed, the terms and effect of s 19 preclude jurisdiction. The award provisions requiring the creation of positions to which such persons may be appointed clearly relate to questions of appointment and are also beyond the Commission's award making power. 1. Although the Full Bench decision in the TAFE Case dealt with s 19 of the Technical and Further Education Commission Act 1990, that section is in materially similar terms to s 58(6) and (7) of the GSE Act and the predecessor public sector legislation. 2. The OEH submitted that there is no material distinction between the findings of the Full Bench in the TAFE Case and the relief sought in this matter, save as to the present matter being directed at the appointment (or engagement as it is termed in the GSE Act) of "temporary employees" as opposed to "temporary part-time" employees. 3. The AWU in response submitted the decision in TAFE Case stood for the "appointment of casual employees to permanent part-time" and should be distinguished from the present dispute notification in which the AWU contends that the temporary employees who are subject to the proceedings have, or should have been "converted" to permanent employees in accordance with rule 12 of the GSE Rules, distinct from being "appointed" or "engaged", such that the subject matter is an industrial matter. I do not agree. 4. Rule 12 of the GSE Rules empowers a conversion from temporary employment to ongoing employment as defined in s 43(2) and (3) of the GSE Act. It is implicit in these definitions that for the conversion to occur the agency head must first determine that there is a need for "ongoing employment". If there is such a need "existing temporary employees" may be considered for conversion, that is, appointment to the ongoing role. The "temporary purpose" justifying the temporary employment may persist or may now be determined not to be temporary. Regardless, it is a different type of engagement which is involved. Rule 12 does not create in a temporary employee a right to conversion on the expiration of 12 months' service. It does provide to such persons an advantage over persons not currently employed should the agency head decide to engage someone in ongoing employment "at-level". 5. I am unable to distinguish this matter from the TAFE Case. There may be fewer prescribed steps, but the first order or direction sought by the AWU is directed to precisely the same relief as sought in the TAFE Case. In respect of the alternative order or direction I accept the submission of the OEH that it is "impermissibly directed at, or related to, the question of the 'engagement of', or the 'failure' of the OEH to engage temporary employees to positions of ongoing employment as non-executive employees." 6. In the Public Service Association (NSW) v Public Service Board (NSW), the Full Bench found, at 416, that the language of s 65A of the Public Service Act was "in wide and unequivocal terms". In Re Crown Employees (New South Wales Fisheries, Salaries and Conditions of Employment) Award, the Full Bench endorsed that view at [64]-[65]. The legislation then under consideration was s 22 of the Public Sector Employment and Management Act which the Full Bench was in no doubt was in relevantly the same terms as s 65A of the Public Service Act. 7. This approach was followed by Backman J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Trade and Investment, Regional Infrastructure and Services (Department of Primary Industries – Fisheries Division). In that case her Honour was considering an application for an award seeking relief in respect of long-term temporary employees who sought permanent appointment under s 31 of the Public Sector Employment and Management Act which has an analogue in rule 12. It was contended that the relevant Department Head's discretion in determining the availability (or lack) of ongoing work had miscarried. As such it was said to be directed to a preparatory step to engagement or appointment and therefore was remote from the reach of s 22 of the Public Sector Employment and Management Act. 8. Her Honour expressed, at [22], the issues confronting her as: In my view, there are two primary questions which need to be decided on the DPI's preliminary application. The first of these is whether the positions in issue, which involve the permanent appointment of long-term employees in accordance with the processes under s 31, may be properly characterised as permanent appointments to vacant positions. If they are to be characterised as vacant positions, a second question arises as to whether the dispute brought under s 130 of the Act falls within s 22(1) as one "relating to" the failure to appoint the long-term temporary employees to permanent positions in accordance with the procedures under s 31. If the answer to the second question is in the affirmative, it follows that the Commission is precluded from dealing further with the subject matter of the dispute because it is not an "industrial matter" under the Act. (Emphasis added) 1. Although dealing with different statutory language the first issue addressed by her Honour finds reflection in the argument of the AWU that these employees "are already employed". After traversing the relevant provisions Backman J concluded, at [29], that: The clear effect of the statutory regime, with particular regard to s 9(5), is that temporary employees do not hold positions in a Department. It follows from this analysis that appointments of long-term temporary employees made under s 31 are, or constitute, appointments to vacant positions. 1. Under the current statutory regime, "vacant positions" equate to "ongoing employment". Consistent with her Honour's conclusion and my analysis at [32] above, the transition from temporary to ongoing employment constitutes engagement within the meaning of ss 58(6) and (7) of the GSE Act. 2. As to the second issue identified by Backman J, her Honour considered authorities directed to the meaning of the phrase "relating to" or cognates of that phrase, at [32]-[37]. Backman J held that they are words of "undoubted width" and were to be interpreted in the relevant statutory context. Her Honour held, at [39]: In my view, the requirement to be satisfied [as to the availability of ongoing work] constitutes, or may constitute, a step precedent or on the route to the decision to approve the appointment. In other words, it is a necessary step which may or may not lead to an appointment to an officer's position. It therefore provides a sufficient connection, or is connected, to s 22(1), that is, the dispute about the Director-General's approach to s 31(3)(c) is a dispute "relating to" the appointment or failure to appoint long-term employees to a vacant position and is therefore caught by s 22(1). 1. By parity of reasoning the same may be said of the AWU's claims for relief. 2. In my view the AWU's reliance on the award is also misplaced. The award cannot have the effect of requiring conversion to "ongoing employment". If it did it would be invalid for the same reasons as the orders now sought are beyond the jurisdiction of the Commission. 3. The AWU's submissions do not convince me to conclude otherwise than that ss 58(6) and (7) of the GSE Act are to be read such that matters directed at or related to the "engagement" or "failure to engage" temporary employees in ongoing employment are not "industrial matters" for the purposes of the IR Act. The dispute notification brought by the AWU is directed to such matters. 4. Accordingly, I grant the relief sought on the respondent's motion. Application for interim relief 1. While these reasons were in the course of preparation, on 5 June 2015, the AWU made an application for interim relief in respect of Mr Dean Brown whose temporary employment is due to terminate at close of business on 10 June 2015. The relief sought was in the following terms: An order that Mr Brown's employment be continued while this matter remains on foot. 1. I reserved my decision in relation to that application. 2. The application for interim relief is concerned with causing the engagement of Mr Brown after the term of his current employment expires. For the reasons just given that relief is beyond the jurisdiction of the Commission. Secondly the decision in respect of the substantive application renders the interim application otiose. The application is accordingly refused. Orders 1. The Commission makes the following orders: 1. The application for an interim order is dismissed. 2. The application is dismissed. ********** 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: 10 June 2015