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. Conciliation 1. On 2 May 2017, in the course of a compulsory conference, I expressed the view that suspension without pay in this case was not in conformity with the Premier's Memorandum and with its application over many years. 2. The Memorandum provides that a suspension without pay may be effected in 'exceptional circumstances'. 3. I expressed the view that what distinguished what are to be regarded as 'exceptional circumstances' within the meaning of the Memorandum, accepting that the examples appearing there were illustrative and not exhaustive of 'exceptional circumstances', was that the examples given both described circumstances where a position other than the fundamental principle that a person is innocent until proven guilty had arisen. That is, circumstances where admissions had been made – not the case here – or a person was actually in custody, meaning that a responsible court had formed the view that the person ought not be at liberty. 4. As Mr Reynolds maintained his innocence of the charges, the circumstances here, in my view, were those contemplated as giving rise to a suspension with with pay, as that guidance is given in the Memorandum 5. I recommended that my views be conveyed to the delegate. I am told, and accept, that they were. The delegate nevertheless determined that the suspension without pay would be continued. He expressed the opinion that, contrary to my view, he considered the criminal charges against Mr Reynolds could be described as 'exceptional circumstances' within the terms of the Memorandum. Arbitration 1. As I had been therefore unable to resolve the dispute by conciliation, on 15 May 2017 I issued a Certificate of Attempted Conciliation and, because I regarded the matter as urgent and able to be determined without contested evidence, set the dispute down for an arbitrated hearing on 23 May 2017. 2. It follows that the powers available to the Commission in the course of this arbitration are those set out in s. 136 of the Industrial Relations Act 1996. ('the Act') 3. The PSA was asked by the respondent to set out the relief it sought in arbitration. Very properly, it did so by means of an email from Mr Wright. 4. I paraphrase what was sought by the PSA somewhat in order to set it out with clarity. 5. The PSA sought a direction from the Commission that the decision to suspend Mr Reynolds without pay be set aside to the extent that it is contrary to the Premier's Memorandum 1994 – 35. 6. It also sought a direction that the decision so set aside be replaced with a decision that complies with the Memorandum. 7. The PSA then sought a direction that the decision-maker comply with the Memorandum at all subsequent reviews. 8. Properly understood, the PSA then sought a recommendation that in the circumstances the Memorandum requires Mr Reynolds' suspension to be with pay. 9. In order to make any of those recommendations or directions in the context of arbitral proceedings, the Commission would be required to interpret, that is, state the meaning of, the Memorandum. 10. Pursuant to s. 175 of the Act, the Commission may, for the purpose of exercising its functions in connection with the matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument). 11. The Premier's Memorandum is certainly not a law. I am bound to come to the view that neither is it an 'instrument'. 12. It is certainly not an "industrial instrument" as that is defined in s. 8 of the Act: "an award, enterprise agreement, public sector industrial agreement, former industrial agreement, a contract determination or a contract agreement". There is no discrete definition in the Act of the term 'instrument'. 13. Advice or guidance, even expressed in a documentary form, which does not create, limit or confirm a right is not an instrument: Australian Capital Equity Pty Ltd v Beale (1993) 41 FCR 242; 114 ALR 50. In my view the Premier's Memorandum, which is guidance as to the exercise of a statutory discretion, is not an 'instrument.' 14. I am fortified in that view by s.3 of the Interpretation Act 1987, which defines 'instrument' to mean "an instrument (including a statutory rule or an environmental planning instrument) made under an Act and includes an instrument made under any such instrument." 15. The Premier's Memorandum is not, in my view, a document having the character of an 'instrument' within the meaning of s.3 of the Interpretation Act. It is not a rule of any sort, and on its face it is unenforceable, (leaving aside the conceivable potential for equitable remedies before the Supreme Court of NSW, remedies which the Commission is not empowered to grant.) 16. If the Memorandum is not an instrument, as I am bound to conclude it is not, the Commission cannot interpret it, even within the context of other proceedings, such as arbitral proceedings, that the Commission is expressly empowered to conduct. 17. Mr Wright made it very clear in submissions that the PSA did not seek an interpretation of the Premier's Memorandum pursuant to the Commission's powers under s.175 of the Act. 18. However, it would be impossible to make any of the recommendations or directions sought by the PSA without making an interpretation of the Memorandum. The Commission would have to state the meaning of the Memorandum in order to make any of the recommendations and directions sought by the PSA. Summary and disposition of the matter 1. For reason of the conclusion of law I have reached, I am unable to grant any of the relief sought by the PSA, nor can I identify any other relief directed to the dispute which the Commission is empowered to give. 2. I do not resile form the views I expressed in conciliation. I still think my view of the proper reading of the Memorandum to be correct. However, I am not empowered to express those views in any formal way in the context of arbitration, and I emphasise that my view has no binding effect whatsoever on the respondent or any other body which may be obliged to operate within the terms of the Memorandum. 3. I am troubled, as a member of the Commission, that parties may no longer in future be able to rely on the Memorandum being interpreted as it has, to my understanding as a practitioner, been interpreted for many years, and that that might give rise to inconsistent decisions, which in turn are potentially productive of industrial disharmony. It may be that those responsible for the Memorandum may see fit to consider revising it for clarity. However, that is merely a view I express; it does not have the force of a recommendation, or indeed any force at all. 4. I repeat that there can be no question but that the suspension without pay is entirely legal; a power to suspend without pay is, as I note above, expressly provided by s. 70 of the Government Sector Employment Act 2013. 5. I decline to make any of the recommendations and directions sought, and nor, as I say, can I identify any other step I could take to assist in resolving the dispute. I cannot do other than close the file. PETER NEWALL Commissioner 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: 31 May 2017