Public Service Association of NSW o/b Reynolds v Secretary for Industrial Relations [2017] NSWIRComm 1027

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association of NSW o/b Reynolds v Secretary for Industrial Relations [2017] NSWIRComm 1027 Hearing dates: 23 May 2017 Date of orders: 31 May 2017 Decision date: 31 May 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application for recommendations and directions refused Catchwords: INDUSTRIAL DISPUTE – arbitration – recommendations and directions sought - refused as beyond power JURISDICTION OF COMMISSION – limited to powers granted by statute – powers of interpretation limited to the express words of s.175 WORDS AND PHRASES –'INSTRUMENT' – Premier's Memorandum giving guidance as to exercise of statutory discretion not an 'instrument'. Legislation Cited: Government Sector Employment Act 2013 s. 70 Industrial Relations Act 1996 ss. 8, 136, 175 Interpretation Act 1987 ss. 3, 10 Cases Cited: Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242; 114 ALR 50 Texts Cited: Premier's Memorandum 1994 – 35 Category: Principal judgment Parties: Public Service Association of NSW Reynolds - Secretary for Industrial Relations Representation: Mr A Wright (notifier)

S B Benson, counsel (respondent)

Solicitors: Crown Solicitors (respondent) File Number(s): 2017/127296

Judgment 1. On 28 April 2017 the Public Service Association of NSW ('the PSA') filed a notification of dispute concerning a decision to suspend without pay a Mr Reynolds, a Senior Correctional Officer employed in the Department of Justice and a PSA member. 2. Mr Reynolds had been charged with certain criminal offences. He was not remanded in custody, has not entered a guilty plea and has made no admissions in respect of the offences. 3. There was no dispute that the delegate had power to suspend Mr Reynolds, and no dispute that he had a power to suspend Mr Reynolds without pay: s. 70 of the Government Sector Employment Act 2013 expressly provides such a power, and does not limit the discretionary ability to so suspend. 4. The dispute turned on the application of Premier's Memorandum 1994 – 35 which provides guidelines to decision-makers about the suspension of public sector employees from duty. That Memorandum has been in existence for more than 20 years and is, to my own knowledge as a practitioner over that time, well-known and acted upon as a guide to the exercise of the discretion by delegates in a wide range of Government departments and agencies, which of course was precisely the purpose of the Memorandum in the first place; to lead to consistency in decisions of this kind.